Company Benefit Plans. (a) Section 3.18(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan. (b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA). (c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan. (d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits. (e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law. (f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification. (g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code. (h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code. (i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code. (j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 3 contracts
Samples: Merger Agreement (Brookfield Property Partners L.P.), Merger Agreement (Brookfield Asset Management Inc.), Merger Agreement (GGP Inc.)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (list, as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with of each Company Benefit Plan. With respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent OmniLit, to the extent applicable, true, complete and accurate correct copies of (A) the most recent annual report on Form 5500 filed with the IRSsuch Company Benefit Plan (or, including if not written a written summary of its material terms) and all schedules plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto; , (B) the most recent determination letter from summary plan descriptions, including any summary of material modifications, (C) the most recent annual reports (Form 5500 series) filed with the IRS for with respect to such Company Benefit Plan, (D) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, (E) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; and any pending request for such a determination letter, (CF) the plan documents and summary plan descriptions, or a written description of the terms of any most recent non-discrimination testing results relating to such Company Benefit Plan that is not in writing; (D) any related trust agreementsPlan, insurance contracts, insurance policies or other documents of any funding arrangements; and (EG) any all non-routine written notices correspondence to or from any Governmental Authority relating to such Company Benefit Plan.
(b) (i) Each Company Benefit Plan has been operated, funded and administered in all material respects in compliance with its terms and all applicable Laws, including ERISA and the Code; (ii) all contributions required to be made with respect to any material compliance issues Company Benefit Plan have been made or, to the extent not yet due, accrued and reflected in respect the Company’s financial statements to the extent required by GAAP in accordance with the terms of the Company Benefit Plan and applicable Law; (iii) each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to its qualification or may rely upon an opinion letter for a prototype plan and, to the knowledge of the Company, no fact or event has occurred that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan.
(bc) Neither No Company Benefit Plan is, and none of the Company, any of its Subsidiaries or any other trade of their ERISA Affiliates has sponsored or business contributed to, been required to contribute to, or has any liability (whether actual or not incorporatedcontingent) which would be treated as with respect to, (i) a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee multiemployer pension benefit plan” plan (as defined in Section 3(23(37) of ERISA), (ii) a defined benefit pension plan that is subject to Section 302 Title IV of ERISA, Section 412 of the Code or Title IV Section 302 of ERISA, (2iii) a “multiemployer plan” multiple employer plan (within the meaning of Section 4001(a)(3413(c) of ERISA the Code), or (3iv) a “multiple employer plan” welfare arrangement (as defined in Section 4063 or 4064 3(40) of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 None of the Code Company, its Subsidiaries or any of their ERISA Affiliates has occurred incurred or is would reasonably be expected to occur with respect to incur any Company Benefit Planliability under Title IV of ERISA.
(d) As of the date hereofWith respect to each Company Benefit Plan, there are no Legal Proceedings (other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge knowledge of the Company, threatened on behalf of or against any Company Benefit Planthreatened, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect and to the administration knowledge of the Company, no facts or operation of circumstances exist that would reasonably be expected to give rise to any such plans, other than routine claims for benefitsLegal Proceedings.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death, life insurance, welfare or similar benefits (whether or not insured) for post-employees, former employees, consultants, managers or directors of the Company or any Subsidiary of the Company (or any dependent or beneficiary thereof) for periods extending beyond their retirement or post-employment welfare benefits to former employees other termination of the Companyservice, other than pursuant to Section 4980B coverage mandated by applicable Law or benefits the full cost of which is borne by the Code current or any similar Lawformer employee, consultant, manager or director (or his or her beneficiary).
(f) Each Except as set forth on Section 4.13(f) of the Company Disclosure Letter, the consummation of the transactions contemplated hereby will not, either alone or in combination with another event (such as termination following the consummation of the transactions contemplated hereby), (i) entitle any current or former employee, officer or other service provider of the Company or any Subsidiary of the Company to any severance pay or any other compensation or benefits, (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation or benefits due any such employee, officer or other service provider, (iii) accelerate the vesting and/or settlement of any Company Award, or (iv) restrict the Company’s or any Subsidiary’s rights to amend or terminate any Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualificationPlan.
(g) Neither the execution or delivery of this Agreement, nor the The consummation of the Transactions transactions contemplated hereby will (not, either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with another event, result in any other payment or benefit, constitute an “excess parachute payment” within the meaning of under Section 280G of the Code.
(h) . No person is entitled Company Benefit Plan provides for, and the Company and its Subsidiaries do not have any obligation to receive make, a Tax gross-up, make whole or similar payment with respect to any additional payment (Taxes, including any tax gross up payment) from the Company Taxes imposed under Sections 409A or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) . Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in within the meaning of Section 409A(d)(1) of the Code) that is subject to Code has been operated in all material respects in compliance with Section 409A of the Code Code. No payment or benefit under any Company Benefit Plan has been, is in compliance in all material respects with or is reasonably expected to be subject to the penalties imposed under or by operation of Section 409A of the Code.
(jh) All contributions required to be made There have been no non-exempt “prohibited transactions” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA and no breaches of fiduciary duty (as determined under ERISA) with respect to any Company Benefit Plan. Each Company Benefit Plan may be amended, terminated or otherwise modified (including cessation of participation) by the Company or any of its Subsidiaries to the greatest extent permitted by applicable Law. Except as required by applicable Law, neither the Company nor any plan document of its Subsidiaries has announced its intention to modify or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding terminate any Company Benefit Plan or adopt any arrangement or program which, once established, would come within the definition of a Company Benefit Plan. No Company Benefit Plan is, for or within the past six (6) years has been, the subject of an application or filing under a government sponsored amnesty, voluntary compliance, or similar program, or been the subject of any period through self-correction under any such program. Neither the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements Company nor any Subsidiary of the Company included in has incurred (whether or not assessed) any material penalty or Tax under Section 4980H, 4980B, 4980D, 6721 or 6722 of the Code.
(i) There is no action currently contemplated by the Company SEC Reportor any of its Subsidiaries, and for the past three years, no action has been taken by the Company or any of its Subsidiaries, in respect of any current or former employee or individual independent contractor of the Company or any of its Subsidiaries or such individuals’ compensation or benefits, in each case, in response to COVID-19.
Appears in 3 contracts
Samples: Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.)
Company Benefit Plans. (a) Section 3.18(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years ever contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (32) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreementthe Transaction Agreements, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross gross-up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Neither the Company Benefit Plan nor any of its Subsidiaries has made or is obligated to make any payment that is a “nonqualified deferred compensation plan” (as defined in would not be deductible pursuant to Section 409A(d)(1162(m) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 2 contracts
Samples: Merger Agreement (Rouse Properties, Inc.), Merger Agreement (Brookfield Asset Management Inc.)
Company Benefit Plans. (a) Section 3.18(a4.15(a) of the Company Disclosure Letter sets forth Schedule contains a true and complete and accurate list as of the date hereof of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase option or other equity-basedequity based compensation, benefitdeferred compensation, incentive compensation, profit sharingseverance or other termination pay, savingschange-in-control, retirementhealth, disability, vacationlife, deferred compensationcafeteria, severanceinsurance, terminationsupplemental unemployment benefits, retentionprofit-sharing, change of control pension or retirement plan, policy, program, agreement or arrangement, and each other similar fringe, welfare or other material employee benefit plan, policy, program, agreementagreement or arrangement whether written or oral, contractsponsored, policy or binding arrangement (whether or not maintained, participated in writing) maintained or contributed to or required to be contributed to by the Company and its Subsidiaries for the benefit of any current or former employee, individual officer, manager, director or consultant of the Company or its Subsidiaries (collectively, the “Employee Benefit Plans”), including each “employee welfare benefit plan” or “employee pension benefit plan” as such terms are defined in Sections 3(1) and 3(2) of ERISA (the “ERISA Plans”). To the Company’s Knowledge, neither the Company nor its Subsidiaries has any formal plan or commitment, whether legally binding or not, to create any additional Employee Benefit Plan, or modify or change any existing Employee Benefit Plan in any manner, that would materially increase any benefits provided to any current or former employee, officer, manager, or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability .
(the “Company Benefit Plans”). As of the date hereof, with b) With respect to each Company Employee Benefit Plan, to the extent applicable, the Company has made available to Parent delivered a true, correct and complete copy of: (i) each writing constituting a part of such Employee Benefit Plan, including all plan documents, employee communications, benefit schedules, trust agreements, and accurate copies of insurance contracts and other funding vehicles; (Aii) the three most recent Annual Reports (Form 5500 Series) and accompanying schedules, if any; (iii) the current summary plan description and any material modifications thereto, if any; (iv) the most recent annual report on Form 5500 filed with the IRSfinancial report, including all schedules theretoif any; (Bv) the most recent actuarial report, if any; and (vi) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptionsIRS, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA)if any.
(c) Each Neither the Company Benefit Plan nor its Subsidiaries has been maintained, operated and administered, engaged in all material respects, in compliance with its terms and with all applicable Law. No nonexempt a non-exempt “prohibited transaction” within the meaning of Code Section 4975 or ERISA Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit ERISA Plan.
(d) As Except as set forth on Section 4.15(d) of the date hereofCompany Disclosure Schedule, there are no Legal Proceedings pending orneither the Company nor any other entity that would be deemed a “single employer” within the meaning of Section 4001(b)(1) of ERISA (an “ERISA Affiliate”) presently maintains, participates in or contributes to an employee benefit plan or within the preceding six years, or to the Knowledge Company’s Knowledge, prior to such time, has previously maintained, participated in or contributed to an employee benefit plan that is (i) a “multiemployer plan,” as defined in ERISA Section 3(37), (ii) a “defined benefit plan,” as defined in ERISA Section 3(35) (collectively with any multiemployer plan, the “Title IV Plans”) or (iii) a “voluntary employees’ beneficiary association” as defined in Section 501(c)(9) of the CompanyCode. Except as set forth on Section 4.15(d) of the Company Disclosure Schedule, threatened neither the Company or its Subsidiaries nor any ERISA Affiliate has any Liabilities under Title IV of ERISA. Except as set forth on behalf Section 4.15(d) of the Company Disclosure Schedule, neither the Company nor its Subsidiaries maintains or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, participates in an “employee stock ownership plan,” as defined in Code Section 4975(e)(n) or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefitsthat otherwise invests in “employer securities” as defined in Code Section 409(l).
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees Each of the CompanyEmployee Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, other than pursuant to Section 4980B including, but not limited to, ERISA and the Code. Each of the Code or any similar Law.
(f) Each Company Benefit Plan ERISA Plans that is intended to be “qualified” under within the meaning of Code Section 401 401(a) is the subject of the Code has received a favorable determination or opinion letter from the IRS to such effect effect, and nothing to the Company’s Knowledge, no event has occurred or is reasonably expected to cause the loss of that would adversely affect such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) qualified status. All contributions required to be made to any Company Employee Benefit Plan by applicable Law, Law or regulation or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Employee Benefit Plan, for any period through the date of this Agreement hereof have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreementhereof, have been fully reflected on the consolidated financial statements in accordance with GAAP. Each Employee Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code is in material compliance with Section 409A of the Code and all regulations promulgated thereunder.
(f) No Employee Benefit Plan of general applicability provides benefits, including death or medical benefits (whether or not insured) with respect to current or former employees of the Company included in or its Subsidiaries or any ERISA Affiliate after retirement or other termination of service, except for those benefits otherwise required by Code Section 4980B or Part 6 of Subtitle B of Title I of ERISA, or similar Laws.
(g) There are no pending or, to the Company SEC ReportCompany’s Knowledge, threatened, claims, suits, investigations, or administrative proceedings by or on behalf of any Employee Benefit Plan, by an employee or beneficiary under any such Employee Benefit Plan or otherwise involving any such Employee Benefit Plan (other than routine claims for benefits).
Appears in 2 contracts
Samples: Merger Agreement (Fresenius Medical Care AG & Co. KGaA), Agreement and Plan of Merger (Fresenius Medical Care AG & Co. KGaA)
Company Benefit Plans. (a1) Section 3.18(a) of the The Company Disclosure Letter sets forth has Previously Disclosed a complete and accurate list of each material (i) “all employee benefit plan” (as defined in Section 3(3) of ERISA)plans, whether or not subject to ERISA and (ii) other employmentprograms, individual consultingpolicies, bonuspractices, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed arrangements providing benefits to for the benefit of any current or former employee, individual consultant officer or director of the Company or any of its Subsidiaries, Company Subsidiary or with respect any beneficiary or dependent thereof that is sponsored or maintained by the Company or any Company Subsidiaries or to which the Company or any Company Subsidiary contributes or is obligated to contribute, whether or not written, including any employee welfare benefit plan within the meaning of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As Section 3(1) of the date hereofEmployee Retirement Income Security Act of 1974, with as amended ("ERISA"), any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any bonus, incentive, deferred compensation, vacation, stock purchase, stock option, severance, employment, change of control, consulting or fringe benefit plan, program, agreement or policy ("Benefit Plan").
(2) With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent the Investor a true, correct and complete and accurate copies of copy of: (A) each writing constituting a part of such Benefit Plan, including all agreements, plan documents, employee communications, benefit schedules, trust agreements, and insurance contracts and other funding vehicles; (B) the most recent annual report on Annual Report (Form 5500 filed with the IRSSeries) and accompanying schedule, including all schedules theretoif any; (BC) the current summary plan description and any material modifications thereto, if any (in each case, whether or not required to be furnished under ERISA); (D) the most recent actuarial report, if any; and (E) the most recent determination letter from the IRS for IRS, if any. Except as specifically provided in the foregoing documents delivered or made available to the Investor, there are no amendments to any Company Benefit Plan that is intended to qualify under Section 401(a) of have been adopted or approved nor has the Code; (C) the plan documents and summary plan descriptions, Company or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices Subsidiary undertaken to or from any Governmental Authority relating to any material compliance issues in respect of make any such Company amendments or to adopt or approve any new Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each The Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Previously Disclosed each Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
"qualified plan" (g"Qualified Plans") Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G 401(a) of the Internal Revenue Code of 1986, as amended (the "Code"). The Internal Revenue Service has issued a favorable determination letter with respect to each Qualified Plan and the related trust that has not been revoked, and there are no circumstances and no events have occurred that could adversely affect the qualified status of any Qualified Plan or the related trust. No Benefits Plan is intended to meet the requirements of Code Section 501(c)(9).
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j4) All contributions required to be made to any Company Benefit Plan by applicable Law, law or regulation or by any plan document or other contractual undertakingdocument, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement hereof have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreementhereof, have been fully reflected on the consolidated financial statements statements.
(5) With respect to each Benefit Plan, the Company and the Company Subsidiaries have complied, and are now in compliance, in all material respects, with all provisions of ERISA, the Code and all laws and regulations applicable to such Benefit Plans. Each Benefit Plan has been administered in all material respects in accordance with its terms. There is not now, nor do any circumstances exist that are likely to give rise to, any requirement for the posting of security with respect to a Benefit Plan or the imposition of any lien on the assets of the Company included or any Company Subsidiary under ERISA or the Code.
(6) With respect to each Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (B) the fair market value of the assets of such Benefit Plan equals or exceeds the actuarial present value of all accrued benefits under such Benefit Plan (whether or not vested), based upon the actuarial assumptions used to prepare the most recent actuarial report for such Benefit Plan; (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such reportable event; (D) all premiums to the Pension Benefit Guaranty Corporation (the "PBGC") have been timely paid in full; (E) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by the Company SEC Reportor any Company Subsidiary; and (F) the PBGC has not instituted proceedings to terminate any such Benefit Plan and, to the Company's knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Benefit Plan.
(7) No Benefit Plan is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Multiemployer Plan") or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a "Multiple Employer Plan"). None of the Company and the Company Subsidiaries nor any entity, trade or business, whether or not incorporated, which together with the Company and the Company Subsidiaries would be deemed a "single employer" within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") has, at any time during the last six years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan. None of the Company and the Company Subsidiaries nor any of their respective ERISA Affiliates has incurred any withdrawal liability as a result of a complete or partial withdrawal from a Multiemployer Plan, as those terms are defined in Part I of Subtitle E of Title IV of ERISA, that has not been satisfied in full.
(8) There does not now exist, nor do any circumstances exist that could result in, any liability (A) under Title IV or Section 302 of ERISA, (B) under Sections 412 and 4971 of the Code and (C) as a result of a material failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, that would be a liability of the Company and any Company Subsidiary or any of their respective ERISA Affiliates, other than such liabilities that have been Previously Disclosed. Without limiting the generality of the foregoing, neither the Company nor any Company Subsidiary, nor any of their respective ERISA Affiliates, has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA.
(9) The Company and the Company Subsidiaries have no liability for life, health, medical or other welfare benefits to 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 and at no expense to the Company and the Company Subsidiaries. The Company and each Company Subsidiary have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage.
(10) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in any material payment (including, without limitation, severance, unemployment compensation, "excess parachute payment" (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former employee, officer or director of the Company or any Company Subsidiary from the Company or any Company Subsidiary under any Benefit Plan or otherwise, (B) materially increase any benefits otherwise payable under any Benefit Plan, (C) result in any acceleration of the time of payment or vesting of any such benefits, (D) require the funding or increase in the funding of any such benefits or (E) result in any limitation on the right of the Company or any Company Subsidiary to amend, merge, terminate or receive a reversion of assets from any Benefit Plan or related trust. Neither the Company nor any Company Subsidiary has taken, or permitted to be taken, any action that required, and no circumstances exist that will require the funding, or increase in the funding, of any benefits or resulted, or will result, in any limitation on the right of the Company or any Company Subsidiary to amend, merge, terminate or receive a reversion of assets from any Benefit Plan or related trust. Neither the Company nor any Company Subsidiary has made an "Irrevocable Election" within the meaning of the trust agreements between the Company, The Dime Savings Bank of New York and HSBC Bank USA (the "Company Trusts"). The funding of the Company Trusts has not resulted in any material diminution of the regulatory capital of The Dime Savings Bank of New York.
(11) None of the Company and the Company 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 could subject the Company, any Company Subsidiary or any person that the Company or any Company Subsidiary has an obligation to indemnify, to any material tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA.
(12) There are no pending or threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to the Company's knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Benefit Plans, any fiduciaries thereof with respect to their duties to the Benefit Plans or the assets of any of the trusts under any of the Benefit Plans which could reasonably be expected to result in any material liability of the Company or any Company Subsidiary.
Appears in 2 contracts
Samples: Investment Agreement (Dime Bancorp Inc), Investment Agreement (Warburg Pincus Equity Partners Lp)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a an accurate and complete and accurate list list, as of the date hereof, of each material (i) Company Benefit Plan. For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA and any other plan, policy, practice, program, agreement or other arrangement (ii) other including any employment, individual consulting, bonus, stock option, stock purchase incentive or other equity-based, benefit, incentive deferred compensation, profit sharingemployee loan, savingsnote or pledge agreement, retirement, disability, vacation, deferred equity or equity‑based compensation, severance, termination, retention, retirement, supplemental retirement, profit sharing, change of control and other in control, vacation, sick, insurance, medical, welfare, fringe or similar fringeplan, welfare or other employee benefit planpolicy, program, agreement, contract, policy agreement or binding arrangement (whether other arrangement) providing compensation or not in writing) maintained other benefits or contributed remuneration to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent SPAC, to the extent applicable, true, complete and accurate correct copies of (A) such Company Benefit Plan (or, if not written a written summary of its material terms) and all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (B) the most recent summary plan descriptions, including any summary of material modifications (C) the most recent annual report on (Form 5500 series) filed with the IRSIRS with respect to such Company Benefit Plan, including all schedules thereto; (BD) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, (E) the most recent determination letter from or opinion letter, if any, issued by the IRS for with respect to any such Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or any pending request for such a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; determination letter and (EF) any written notices all material written, non‑routine correspondence to or from the IRS, the United States Department of Labor (“DOL”), the Pension Benefit Guaranty Corporation or any other Governmental Authority relating received in the last year with respect to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 2 contracts
Samples: Business Combination Agreement (Silver Spike Acquisition Corp II), Business Combination Agreement (Eleusis Inc.)
Company Benefit Plans. (a) Section 3.18(a) As of the date of this Agreement, the Company Disclosure Letter has provided Buyer a schedule that sets forth for each current Service Provider of the Group Companies (to the extent permitted by applicable Law), his or her name, employer, employee identification number, title, hire date, annual base salary or wage rate, current annual bonus opportunity, location of employment, whether full- or part-time, leave status (and, if on leave, the expected return date) and exempt or non-exempt status. With respect to the current annual bonus opportunity for each Service Provider, if such annual bonus opportunities have not been determined as of the date of this Agreement, the Company will provide Buyer with this information for each Service Provider within five (5) days after the date that these bonuses opportunities are determined by the Company. Five (5) Business Days prior to the Closing Date, the Company will provide Buyer with a revised version of such schedule, updated as of ten days prior to the Closing Date. Except as set forth in Schedule 3.17(a), to the Knowledge of the Company, no Covered Employee has provided written notice to the Company that he or she intends to resign or retire as a result of the transactions contemplated by this Agreement or otherwise within one year following the Closing Date.
(b) Schedule 3.17(b) contains a true, correct and complete and accurate list of all Company Benefit Plans and specifies whether such plan is a US Plan or an International Plan. For each material Company Benefit Plan, the Company has provided to Buyer a copy of such plan (or a description, if such plan is not written) and all amendments thereto and, as applicable, (i) all trust agreements, insurance contracts or other funding arrangements and amendments thereto, (ii) the current prospectus or summary plan description and most recent summaries of material modifications, (iii) the most recent favorable determination or opinion letter from the U.S. Internal Revenue Service (the “IRS”), (iv) the annual returns/reports (Form 5500) and accompanying schedules and attachments for the most recently completed plan year, (v) the most recently prepared actuarial reports and financial statements, (vi) all material, non-routine documents and correspondence relating thereto received from or provided to the IRS, the Department of Labor, the PBGC or any other Governmental Entity during the past year, (vii) all current administrative and other service contracts and material amendments thereto with third-party service providers, (viii) all current employee benefit handbooks, manuals and material policies, and (ix) if such plan is an International Plan, documents that are substantially comparable (taking into account differences in applicable Law and practices) to the documents required to be provided in clauses (i) through (viii).
(c) Except as set forth on Schedule 3.17(c):
(i) No Company Benefit Plan is, and no Group Company has sponsored, maintained, administered or contributed to (or had any obligation to contribute to) in the past six (6) years, (i) a “multiemployer pension plan” (as defined in Section 3(3Sections 3(37) or 4001(a)(3) of ERISA), whether ) or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined described in Section 4063 413(c) of the Code), and the Company has no obligation or 4064 liability (and is not reasonably expected to have any direct or indirect obligation or liability) in connection with any such “multiemployer plan” or “multiple employer plan”;
(ii) No Company Benefit Plan is, and no Group Company has sponsored, maintained, administered or contributed to (or had any obligation to contribute to) in the past six (6) years, an employee benefit plan subject to Section 302 or Title IV of ERISA or Section 412 of the Code, and no Group Company has, or is reasonably expected to have, any direct or indirect material liability under Title IV of ERISA).;
(ciii) No Company Benefit Plan is a defined benefit pension plan;
(iv) Each Company Benefit Plan has been maintainedestablished, administered and operated in all material respects in accordance with its terms and in compliance with applicable Laws, including ERISA and the Code, and no events have occurred with respect to any Company Benefit Plan that could result in any payment or assessment by or against any Group Company of any excise taxes under ERISA or the Code;
(v) No liability, claim, action or litigation is pending or has been made, commenced or threatened since January 1, 2016 with respect to any Company Benefit Plan before any arbitrator or any Governmental Entity, including the IRS, the Department of Labor or the PBGC (other than routine claims for benefits payable in the Ordinary Course) and, to the Knowledge of the Company, no investigation, audit or proceeding is pending or has been made, commenced or threatened since January 1, 2016 with respect to any Company Benefit Plan before any Governmental Entity;
(vi) Each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS, is comprised of a master or prototype plan that has received a favorable opinion letter from the IRS, or has applied to the IRS for such a letter within the applicable remedial amendment period or such period has not expired and no event has occurred and no condition exists which would reasonably be expected to result in the revocation of or the refusal to issue or reissue any such determination letter or opinion letter or a penalty under the IRS Closing Agreement Program if discovered during an IRS audit or investigation; furthermore, each trust created under any such Company Benefit Plan is exempt from Tax under Section 501(a) of the Code and has been so exempt from its creation;
(vii) Each International Plan that (i) is intended to qualify for special tax treatment meets all the requirements for such treatment except as would not result in material liability to the Group Companies, taken as a whole, and (ii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, to the extent required, based on reasonable actuarial assumptions in accordance with applicable accounting principles;
(viii) No Group Company has any current or projected liability for, and no Company Benefit Plan provides or promises, any post-employment (other than through the end of the month of termination) or post-retirement medical, dental, disability, hospitalization, life, welfare or similar benefits (whether insured or self-insured) to any current or former Service Provider, except as required by applicable Laws, including COBRA;
(ix) No Group Company nor, to the Knowledge of the Company, any other “disqualified person” or “party in interest” (as defined in Section 4975(e)(2) of the Code and Section 3(14) of ERISA, respectively) has engaged in any transactions in the past three (3) years in connection with and Company Benefit Plan that would reasonably be expected to result in the imposition of a penalty pursuant to Section 502 of ERISA, damages pursuant to Section 409 of ERISA or a tax pursuant to Section 4975 of the Code;
(x) No Group Company has filed in the past three (3) years an application under the IRS Employee Plans Compliance Resolution System or the Department of Labor’s Voluntary Fiduciary Correction Program with respect to any Company Benefit Plan;
(xi) All contributions, premiums and payments that are due have been made for each Company Benefit Plan within the time periods prescribed by the terms of such plan and applicable Law except as would not result in material liability to the Group Companies, taken as a whole;
(xii) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (either alone or in combination with another event) shall (i) entitle any current or former Service Provider to any bonus, severance, retention, retirement, change in control, job security payment or any other payment or benefit, (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, or increase the amount payable or trigger any other obligation under, any Company Benefit Plan, (iii) limit or restrict the right of any Group Company or, after the Closing, Buyer, to merge, amend or terminate any Company Benefit Plan, or (iv) result in the payment of any amount that would not be deductible under Section 280G of the Code; and
(xiii) Each Company Benefit Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” (within the meaning of Section 409A or 457A of the Code) has been timely amended (if applicable) to comply and has been operated and administered, in all material respects, in compliance with its terms with, and with all Group Companies have complied, in all material respects, in practice and operation with, all applicable Law. No nonexempt “prohibited transaction” within the meaning requirements of Section 406 of ERISA Sections 409A and Section 4975 457A of the Code has occurred or is reasonably expected to occur with respect to and any Company Benefit Plan.
(d) As proposed and final guidance under Sections 409A and 457A of the date hereofCode. No Group Company has any obligation to gross-up, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of indemnify or against otherwise reimburse any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, current or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor Service Provider of the Company for any Taxes incurred by such Service Provider, including under Section 409A, 457A or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G 4999 of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Charles River Laboratories International Inc)
Company Benefit Plans. (a) Section 3.18(a3.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “Schedule lists all employee benefit plan” plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), whether or not subject to ERISA ERISA, and (ii) other employment, individual consulting, all bonus, stock option, stock purchase or other equity-basedpurchase, benefitrestricted stock, incentive compensation, profit sharing, savings, retirement, disability, vacationincentive, deferred compensation, severanceretiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all retention, bonus, employment, termination, retention, change of control and other similar fringe, welfare severance or other employee benefit plancontracts or agreements to which Company or any Subsidiary or any of their respective ERISA Affiliates (as hereinafter defined) is a party, programcurrently maintains, agreement, contract, policy contributes to or binding arrangement (whether or not in writing) maintained or contributed to sponsors for the benefit of any current or former employee, individual consultant officer, director or director independent contractor of the Company or any Subsidiary or any of its Subsidiaries, their respective ERISA Affiliates or with respect to for which the Company or any of its Subsidiaries has Subsidiary could otherwise have any current or future Liability material liability or material obligations (all such plans, programs, arrangements, contracts or agreements, whether or not listed in Section 3.11(a) of the Company Disclosure Schedule, collectively, the “Company Benefit Plans”). As .
(b) Company has made available to Purchaser true, correct and complete copies of the date hereof, following (as applicable) with respect to each Company Benefit Plan: (i) the written document evidencing such Company Benefit Plan or, to if such Company Benefit Plan is not in writing, a written description of the extent applicablematerial terms thereof, and all amendments, modifications or material supplements thereto, (ii) the Company has made available to Parent complete and accurate copies of annual report (AForm 5500), if any, filed with the U.S. Internal Revenue Service (“IRS”) for the last two plan years, (iii) the most recently received IRS determination letter, if any, (iv) the most recently prepared actuarial report or financial statement, if any, (v) the most recent annual report on Form 5500 filed summary plan description, if any (or other descriptions of such Company Benefit Plan provided to Employees) and all modifications thereto, (vi) all material correspondence with the Department of Labor or the IRS, including all schedules thereto; (Bvii) the most recent determination letter from nondiscrimination tests performed under ERISA and the Code, (viii) all contracts with third-party administrators, compensation consultants and other service providers that related thereto, and (ix) any related trust agreements, insurance contracts or documents of any other funding arrangements relating thereto. Except as specifically provided in the foregoing documents delivered or made available to Purchaser, there are no amendments to any Company Benefit Plans that have been adopted or approved nor has Company or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Company Benefit Plans. No Company Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside of the United States.
(c) Each Company Benefit Plan has been established, operated and administered in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code. During the six years preceding the date of this Agreement, neither Company nor any of its Subsidiaries has taken any action to take corrective action or make a filing under any voluntary correction program of the IRS, Department of Labor or any other Governmental Entity with respect to any Company Benefit Plan, and, to Company’s Knowledge, except as disclosed in Section 3.11(c) of the Company Disclosure Schedule, no plan defect exists that would qualify for correction under any such program.
(d) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” as defined in Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) and any award thereunder, in each case that is subject to Section 409A of the Code, has (i) been maintained and operated in good faith compliance with Section 409A of the Code and IRS Notice 2005-1, and (ii) been in documentary and operational compliance with a reasonable interpretation of Section 409A of the Code. No assets set aside for the payment of benefits under any Nonqualified Deferred Compensation Plan are held outside of the United States, except to the extent that substantially all of the services to which such benefits are attributable have been performed in the jurisdiction in which such assets are held.
(e) Section 3.11(e) of the Company Disclosure Schedule identifies each Company Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code; Code (C) the plan documents “Qualified Plans”). The IRS has issued a favorable determination letter with respect to each Qualified Plan and summary plan descriptionsthe related trust that has not been revoked or threatened to be revoked, and, to Company’s Knowledge, no circumstances or a written description of events have occurred that would reasonably be expected to adversely affect the terms qualified status of any Company Benefit Qualified Plan that is not in writing; (D) any or the related trust agreements, insurance contracts, insurance policies or other documents increase the costs relating thereto. No trust funding any Plan is intended to meet the requirements of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit PlanCode Section 501(c)(9).
(bf) Neither the Company, None of Company and its Subsidiaries nor any of its Subsidiaries or their respective ERISA Affiliates has, at any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within time during the last six (6) years years, contributed to or been obligated to contribute to any plan that is (1i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Title IV or Section 302 of ERISA, ERISA or Section 412 or 4971 of the Code or Title IV of ERISA, (2ii) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 Multiemployer Plan”) or 4064 a plan that has two or more contributing sponsors at least two of ERISA).
(c) Each Company Benefit Plan has been maintainedwhom are not under common control, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 4063 of ERISA (a “Multiple Employer Plan”); and Section 4975 none of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries or any of their respective ERISA Affiliates has incurred 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 such Multiemployer Plan or Multiple Employer Plan.
(g) Except as set forth in Section 3.11(g) of the imposition Company Disclosure Schedule, neither Company nor any of additional taxes under its Subsidiaries sponsors, has sponsored or has any obligation with respect to any employee benefit plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current Employees or beneficiaries or dependents thereof, except as required by Section 4999 or Section 409A 4980B of the Code. Company and each of its Subsidiaries have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or medical or life insurance coverage, and no representations or commitments, whether or not written, have been made that would limit Company’s or such Subsidiary’s right to amend, terminate or modify any such benefits.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(jh) All contributions required to be made to any Company Benefit Plan by applicable Law, Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement hereof, have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreementhereof, have been fully reflected on the consolidated financial statements books and records of Company.
(i) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) result in, cause the vesting, exercisability or delivery of, or increase in the amount or value of, any payment, right or other benefit to any employee, officer, director or other service provider of Company or any of its Subsidiaries, or result in any limitation on the right of Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by Company or any of its Subsidiaries in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code, or otherwise.
(j) There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability (as hereinafter defined) that would be a material liability of Company, its Subsidiaries or any of their ERISA Affiliates following the Closing. Without limiting the generality of the foregoing, neither Company nor any of its ERISA Affiliates has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA.
(k) None of Company or any its Subsidiaries or any of their respective ERISA Affiliates or any Person now or previously employed by Company, including any fiduciary, has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the Company included Benefit Plans or their related trusts, Company, any of its Subsidiaries, any of their respective ERISA Affiliates or any Person that Company or any of its Subsidiaries has an obligation to indemnify with respect to such prohibited transaction, to any material Tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA.
(l) There are no pending or, to Company’s Knowledge, threatened claims (other than claims for benefits in the ordinary course of business), lawsuits or arbitrations which have been asserted or instituted, and, to Company’s Knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Company SEC ReportBenefit Plans, any fiduciaries thereof with respect to their duties to the Company Benefit Plans or the assets of any of the trusts under any of the Company Benefit Plans which could reasonably be expected to result in any material liability of Company or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any Multiemployer Plan, a Multiple Employer Plan, any participant in a Company Benefit Plan, or any other party.
(m) Each individual who renders services to Company or any of its Subsidiaries who is classified by Company or such Subsidiary, as applicable, as having the status of an independent contractor or other non-employee status for any purpose (including for purposes of taxation and tax reporting and under Company Benefit Plans) is properly so characterized.
(n) Except as disclosed in Section 3.11(n) of the Company Disclosure Schedule, neither Company nor Company Bank maintains any compensation plans, programs or arrangements under which payment is reasonably likely to become non-deductible, in whole or in part, for tax reporting purposes as a result of the limitations under Section 162 (m) of the Code and the regulations issued thereunder, it being understood that Company makes no representation or warranty regarding the effect of the transactions contemplated by this Agreement or any actions taken by Purchaser or any of its subsidiaries or affiliates on the deductibility of any compensation under section 162 (m) of the Code and the regulations issued thereunder.
Appears in 2 contracts
Samples: Merger Agreement (Farmers National Banc Corp /Oh/), Merger Agreement (Cortland Bancorp Inc)
Company Benefit Plans. (a) Section 3.18(a3.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “Schedule lists all employee benefit plan” plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), whether or not subject to ERISA ERISA, and (ii) other employment, individual consulting, all bonus, stock option, stock purchase or other equity-basedpurchase, benefitrestricted stock, incentive compensation, profit sharing, savings, retirement, disability, vacationincentive, deferred compensation, severanceretiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all retention, bonus, employment, termination, retention, change of control and other similar fringe, welfare severance or other employee benefit plancontracts or agreements to which Company or any Subsidiary or any of their respective ERISA Affiliates (as hereinafter defined) is a party, programcurrently maintains, agreement, contract, policy contributes to or binding arrangement (whether or not in writing) maintained or contributed to sponsors for the benefit of any current or former employee, individual consultant officer, director or director independent contractor of the Company or any Subsidiary or any of its Subsidiaries, their respective ERISA Affiliates or with respect to for which the Company or any of its Subsidiaries has Subsidiary could otherwise have any current or future Liability material liability or material obligations (all such plans, programs, arrangements, contracts or agreements, whether or not listed in Section 3.11(a) of the Company Disclosure Schedule, collectively, the “Company Benefit Plans”). As .
(b) The Company has delivered or made available to Purchaser true, correct and complete copies of the date hereoffollowing (as applicable): (i) the written document evidencing each Company Benefit Plan or, with respect to each any such plan that is not in writing, a written description of the material terms thereof, and all amendments, modifications or material supplements to any Company Benefit Plan, (ii) the annual report (Form 5500), if any, filed with the U.S. Internal Revenue Service (“IRS”) for the last two plan years, (iii) the most recently received IRS determination letter, if any, relating to a Company Benefit Plan, (iv) the extent applicablemost recently prepared actuarial report or financial statement, the if any, relating to a Company has made available to Parent complete and accurate copies of Benefit Plan, (Av) the most recent annual report on Form 5500 filed summary plan description, if any, for such Company Benefit Plan (or other descriptions of such Company Benefit Plan provided to employees) and all modifications thereto, (vi) all material correspondence with the Department of Labor or the IRS and (vii) any related trust agreements, insurance contracts or documents of any other funding arrangements relating to a Company Benefit Plan. Except as specifically provided in the foregoing documents delivered or made available to Purchaser, there are no amendments to any Company Benefit Plans that have been adopted or approved nor has Company or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Company Benefit Plans. No Company Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside of the United States.
(c) Each Company Benefit Plan has been established, operated and administered in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code. During the six years preceding the date of this Agreement, neither Company nor any of its Subsidiaries has taken any action to take corrective action or make a filing under any voluntary correction program of the IRS, including Department of Labor or any other Governmental Entity with respect to any Company Benefit Plan, and neither Company nor any of its Subsidiaries has any knowledge of any plan defect that would qualify for correction under any such program.
(d) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” as defined in Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) and any award thereunder, in each case that is subject to Section 409A of the Code, has since (i) January 1, 2005, been maintained and operated in good faith compliance with Section 409A of the Code and IRS Notice 2005-1, (ii) October 3, 2004, not been “materially modified” (within the meaning of Notice 2005-1) and (iii) December 31, 2008, been in documentary and operational compliance with Section 409A of the Code. No assets set aside for the payment of benefits under any Nonqualified Deferred Compensation Plan are held outside of the United States, except to the extent that substantially all schedules thereto; of the services to which such benefits are attributable have been performed in the jurisdiction in which such assets are held.
(Be) Section 3.11(e) of the most recent determination letter from the IRS for any Company Disclosure Schedule identifies each Company Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code; Code (C) the plan documents “Qualified Plans”). The IRS has issued a favorable determination letter with respect to each Qualified Plan and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreementshas not been revoked (nor has revocation been threatened), insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such neither Company Benefit Plan.
(b) Neither the Company, nor any of its Subsidiaries has any knowledge of any existing circumstances or events that have occurred that could adversely affect the qualified status of any other trade Qualified Plan or business the related trust or increase the costs relating thereto. No trust funding any Plan is intended to meet the requirements of Code Section 501(c)(9).
(whether or not incorporatedf) which would be treated as a single employer with the None of Company or and its Subsidiaries nor any of its Subsidiaries under Section 414 of the Code maintains or has within their respective ERISA Affiliates has, at any time during the last six (6) years years, contributed to or been obligated to contribute to any plan that is (1i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Title IV or Section 302 of ERISA, ERISA or Section 412 or 4971 of the Code or Title IV of ERISA, (2ii) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 Multiemployer Plan”) or 4064 a plan that has two or more contributing sponsors at least two of ERISA).
(c) Each Company Benefit Plan has been maintainedwhom are not under common control, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 4063 of ERISA (a “Multiple Employer Plan”); and Section 4975 none of the Code Company and its Subsidiaries nor any of their respective ERISA Affiliates has occurred incurred any liability to a Multiemployer Plan or is reasonably expected to occur with respect to any Company Benefit 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 such Multiemployer Plan or Multiple Employer Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, Company nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its SubsidiariesSubsidiaries sponsors, (B) increase the amount has sponsored or value of has any benefit or compensation otherwise payable or required to be provided obligation with respect to any such directoremployee benefit plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, employee former or independent contractorcurrent employees or beneficiaries or dependents thereof, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of required by Section 280G 4980B of the Code. The Company and each of its Subsidiaries have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or medical or life insurance coverage, and no representations or commitments, whether or not written, have been made that would limit Company’s or such Subsidiary’s right to amend, terminate or modify any such benefits.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement hereof, have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreementhereof, have been fully reflected on the consolidated financial statements books and records of Company.
(i) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) result in, cause the vesting, exercisability or delivery of, or increase in the amount or value of, any payment, right or other benefit to any employee, officer, director or other service provider of Company or any of its Subsidiaries, or result in any limitation on the right of Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by Company or any of its Subsidiaries in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code, or otherwise.
(j) There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability (as hereinafter defined) that would be a liability of Company, its Subsidiaries or any of their ERISA Affiliates following the Closing. Without limiting the generality of the foregoing, neither Company nor any of its ERISA Affiliates has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA.
(k) None of Company and its Subsidiaries nor any of their respective ERISA Affiliates 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 could subject any of the Company included Benefit Plans or their related trusts, Company, any of its Subsidiaries, any of their respective ERISA Affiliates or any Person that 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.
(l) There are no pending or threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to Company’s Knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Company SEC ReportBenefit Plans, any fiduciaries thereof with respect to their duties to the Company Benefits Plans or the assets of any of the trusts under any of the Company Benefit Plans which could reasonably be expected to result in any material liability of Company or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any Multiemployer Plan, a Multiple Employer Plan, any participant in a Company Benefit Plan, or any other party.
(m) Each individual who renders services to Company or any of its Subsidiaries who is classified by Company or such Subsidiary, as applicable, as having the status of an independent contractor or other non-employee status for any purpose (including for purposes of taxation and tax reporting and under Company Benefit Plans) is properly so characterized.
(n) No deduction of any amount payable pursuant to the terms of any Company Benefit Plan has been disallowed or is subject to disallowance under Section 162(m) of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Huntington Bancshares Inc/Md), Merger Agreement (Camco Financial Corp)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material (i) Company Benefit Plan. For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) or any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, complete and accurate correct copies of (A) the most recent annual report on Form 5500 filed with the IRSsuch Company Benefit Plan (or, including if not written a written summary of its material terms) and all schedules plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto; , (B) the most recent determination letter from the IRS for summary plan descriptions, including any Company Benefit Plan that is intended to qualify under Section 401(a) summary of the Code; material modifications, (C) the plan documents and summary plan descriptions, or a written description of most recent annual reports (Form 5500 series) filed with the terms of any IRS with respect to such Company Benefit Plan that is not in writing; Plan, (D) any related trust agreements, insurance contracts, insurance policies the most recent actuarial report or other documents of any funding arrangements; financial statement relating to such Company Benefit Plan, and (E) any written notices to the most recent determination or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither opinion letter, if any, issued by the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur IRS with respect to any Company Benefit PlanPlan and any pending request for such a determination letter.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 2 contracts
Samples: Merger Agreement (Aspirational Consumer Lifestyle Corp.), Merger Agreement (Social Capital Hedosophia Holdings Corp. II)
Company Benefit Plans. (a) Section 3.18(a) of the Company Disclosure Letter sets forth a complete and accurate list of SECTION 4.14 OF THE COMPANY DISCLOSURE LETTER lists each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) With respect to each Company Benefit Plan, Company has delivered or made available to Parent a true, complete and correct copy of (i) such Company Benefit Plan (of, if not written, a written summary of its material terms) and the most recent summary plan description and summary of material modifications, if any, related to such Company Benefit Plan, (ii) each trust agreement, insurance contract or other funding arrangement, (iii) the most recent annual report (Form 5500) filed with the IRS) (and, if the most recent annual report is a Form 5500R, the most recent Form 5500C filed with respect to such Company Benefit Plan), (iv) the most recent actuarial report or financial statement, (v) the most recent determination letter, if any, issued by the IRS and any pending request for a determination letter and (vi) each registration statement, permit application and prospectus. Neither the Company nor any Company Subsidiary nor, to the knowledge of the Company, any of its Subsidiaries other Person or entity, has any other trade express or business implied commitment, whether legally enforceable or not, to continue (whether or not incorporated) which would be treated as a single employer with the Company or for any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISAperiod), subject modify, change or terminate any Company Benefit Plan, other than with respect to Section 302 of ERISAa modification, Section 412 of the Code change or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of termination required by ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA)the Internal Revenue Code.
(c) Each Company Benefit Plan has been maintained, operated and administered, administered in all material respects, respects in compliance accordance with its terms and with all applicable Lawlaws, including ERISA and the Internal Revenue Code (including the prohibited transaction rules thereunder), and contributions required to be made under the terms of any of the Company Benefit Plans as of the date of this Agreement have been timely made or, if not yet due, have been properly reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Company SEC Documents prior to the date of this Agreement. No nonexempt “prohibited transaction” within suit, administrative proceeding, action or other adverse proceeding or claim has been brought or threatened against or with respect to any such Company Benefit Plan (other than routine benefits claims) and to the meaning of Section 406 of ERISA and Section 4975 knowledge of the Code Company there is no pending audit or inquiry by the Internal Revenue Service or United States Department of Labor with respect to any Company Benefit Plan. No event has occurred and, to the knowledge of Company, there exists no condition or is reasonably expected set of circumstances that could subject the Company or any Company Subsidiary to occur with respect any material liability (other than for routine benefit liabilities) relating in any way to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Each Company Benefit Plan can be amended, discontinued or terminated at any time (including after the Effective Time) in accordance with respect to the administration or operation of such plansits terms, without liability (other than routine claims (A) liability for benefitsordinary administrative expenses typically incurred in a termination event or (B) liabilities for which sufficient assets are set aside in a trust or insurance contract to satisfy such liability or which are reflected on the Company's most recent consolidated balance sheet).
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan and its related trust that is intended to be “qualified” qualify under Section 401 401(a) or 4975(e)(7) and Section 501(a), respectively, of the Internal Revenue Code has received a favorable determination letter from the IRS as to such effect qualified status or has been established under a standardized prototype plan for which an Internal Revenue Service opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer and nothing has occurred or is that could reasonably be expected to cause the loss of such qualificationqualified status.
(f) No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) or other pension plan subject to Title IV of ERISA or the minimum funding rules of ERISA or the Internal Revenue Code and no Company ERISA Affiliate has sponsored or contributed to or been required to contribute to any such pension plan.
(g) Neither With respect to each Benefit Plan required to be set forth in the Company Disclosure Letter that is subject to Title IV of ERISA or the minimum funding rules of ERISA or the Internal Revenue Code, (i) no reportable event (within the meaning of Section 4043 of ERISA, other than an event that is not required to be reported before or within thirty (30) days of such event) has occurred or is expected to occur, (ii) there was not an accumulated funding deficiency (within the meaning of Section 302 of ERISA or Section 412 of the Internal Revenue Code), whether or not waived, as of the most recently ended plan year of such Benefit Plan; and (iii) there is no "unfunded benefit liability" (within the meaning of Section 4001(a)(18) of ERISA). No material liability under Title IV of ERISA has been incurred by the Company or any other Company ERISA Affiliate that has not been satisfied in full, and, to the knowledge of the Company, no condition exists that presents a material risk to Company or any Company Subsidiary of incurring or being subject (whether primarily, jointly or secondarily) to a material liability thereunder. To the knowledge of the Company, none of the assets of the Company or any Company Subsidiary is, or may reasonably be expected to become, the subject of any lien arising under ERISA or Section 412(n) of the Internal Revenue Code.
(h) Except as required by Law, no Company Benefit Plan provides any of the following retiree or post-employment benefits to any person: medical, disability or life insurance benefits. To knowledge of the Company, the Company and each of the Company Subsidiaries are in compliance with (i) the requirements of the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996, as amended.
(i) The Company has delivered or made available to Parent true, complete and correct copies of (i) all employment agreements with officers and all consulting agreements of the Company and each Company Subsidiary providing for annual compensation in excess of one hundred thousand dollars ($100,000), (ii) all severance plans, agreements, programs and policies of the Company and each Company Subsidiary with or relating to their respective employees, directors or consultants, and (iii) all plans, programs, agreements and other arrangements of the Company and each Company Subsidiary with or relating to their respective employees, directors or consultants which contain "change of control" provisions.
(j) Except as set forth on SECTION 4.14(j) OF THE COMPANY DISCLOSURE LETTER, to the knowledge of the Company (after due inquiry), the execution or delivery of this Agreementof, nor the consummation and performance of the Transactions transactions contemplated by, this Agreement will not (either alone along with or upon the occurrence of any additional or subsequent events) (A) constitute an event under any Company Benefit Plan or agreement that will or may reasonably be expected to result in any payment (whether severance pay or benefit becoming due otherwise), acceleration, vesting or payableincrease in benefits with respect to any employee, former employee or director of the Company, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount whether or value of any benefit or compensation otherwise payable or required to be provided to not any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as payment would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “"excess parachute payment” " (within the meaning of Section 280G of the Internal Revenue Code.
(h). Section 4.14(j) No person is entitled OF THE COMPANY DISCLOSURE LETTER sets forth a list of all persons who the Company reasonably believes are, with respect to receive any additional payment (including any tax gross up payment) from the Company or any Company Subsidiary, "disqualified individuals" (within the meaning of its Subsidiaries as a result Section 280G of the imposition Internal Revenue Code and the regulations promulgated thereunder) as of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made and the projected amount of any excess parachute payments.
(k) No administrator or paid similar Person or body has exercised its discretion under the Company's 1999 Stock Option Plan to cause any outstanding Company Option to terminate in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements connection with any of the Company included in the Company SEC ReportTransactions.
Appears in 2 contracts
Samples: Merger Agreement (Convergent Holding Corp), Merger Agreement (Convergent Holding Corp)
Company Benefit Plans. (a) Section 3.18(aPart 2.17(a) of the Company Disclosure Letter sets forth Schedule contains a true, correct and complete and accurate list of each material Company Benefit Plan and ERISA Affiliate Plan. Any special tax status or tax benefits for plan participants enjoyed or offered by a Company Benefit Plan or ERISA Affiliate Plan is noted on such schedule.
(ib) “employee benefit plan” (as defined in Section 3(3With respect to each Company Benefit Plan and ERISA Affiliate Plan identified on Part 2.17(a) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company Disclosure Schedule, the Company has heretofore delivered to Parent true, correct and complete copies of the plan documents and any amendments thereto (or, in the event the plan is not written, a written description thereof), any related trust, insurance contract or other funding vehicle, any of its Subsidiariesreports or summaries required under all applicable Laws, including ERISA or the Code, the most recent determination or opinion letter received from the IRS with respect to which each current Company Benefit Plan or ERISA Affiliate Plan intended to qualify under Code Section 401, nondiscrimination and coverage tests for the most recent three (3) full plan years, the three (3) most recent annual reports (Form 5500) filed with the IRS and financial statements (if applicable), the three (3) most recent actuarial reports or valuations (if applicable) and such other documentation with respect to any Company Benefit Plan or ERISA Affiliate Plan (whether current or not) as is reasonably requested by Parent.
(c) To the Company’s Knowledge, the Company records accurately reflect the employment or any service histories of its Subsidiaries has any current or future Liability Employees, independent contractors, contingent workers and leased employees.
(the “Company Benefit Plans”). As of the date hereof, with d) With respect to each Company Benefit Plan, to the extent applicable, the Company (i) there has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for not occurred any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt non-exempt “prohibited transaction” within the meaning of Section 4975(c) of the Code or Section 406 of ERISA that would subject the Surviving Corporation, its Subsidiaries or Parent to any material liability and (ii) no fiduciary (within the meaning of Section 4975 3(21) of ERISA) of any Company Benefit Plan that is subject to Part 4 of Title I of ERISA has committed a breach of fiduciary duty that would subject the Surviving Corporation, its Subsidiaries or Parent to any liability. The Company has not incurred any excise Taxes under Chapter 43 of the Code and nothing has occurred or is reasonably expected to occur with respect to any Company Benefit Plan that would reasonably be expected to subject the Surviving Corporation, its Subsidiaries or Parent to any such Taxes. The transactions contemplated by this Agreement will not trigger any Taxes under Section 4978 of the Code. No Company Benefit Plan or ERISA Affiliate Plan is or was subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, and no Company Benefit Plan or ERISA Affiliate Plan is or was a “multiemployer plan” (as defined in Section 3(37) of ERISA), a “multiple employer plan” (within the meaning of Section 413(c) of the Code), or a “multiple employer welfare arrangement” (as defined in Section 3(40)(A) of ERISA), nor has the Company or any of its ERISA Affiliates ever sponsored, maintained, contributed to, or had any liability or obligation with respect to, any such Company Benefit Plan or ERISA Affiliate Plan.
(de) As Each Company Benefit Plan or ERISA Affiliate Plan has been established, registered, qualified, invested, operated and administered in all material respects in accordance with its terms and in compliance with all Applicable Benefit Laws. The Company has performed and complied in all material respects with all of its obligations under or with respect to the Company Benefit Plans. The Company has not incurred, and no fact exists that reasonably could be expected to result in, any liability to the Company with respect to any Company Benefit Plan or any ERISA Affiliate Plan, including any Liability, Tax, penalty or fee under any Applicable Benefit Law (other than to pay premiums, contributions or benefits in the ordinary course of business consistent with past practice). There are no current or, to the Knowledge of the Company, threatened or reasonably foreseeable Encumbrances on any assets of any Company Benefit Plan or ERISA Affiliate Plan.
(f) No fact or circumstance exists that reasonably could be expected to adversely affect the Tax-exempt status of a Company Benefit Plan or ERISA Affiliate Plan that is intended to be Tax-exempt. Further, each such plan intended to be “qualified” within the meaning of Section 401(a) of the Code and the trusts maintained thereunder that are intended to be exempt from taxation under Section 501(a) of the Code has received a favorable determination or opinion letter with respect to all Applicable Benefits Laws on which the IRS will issue a favorable determination letter on its qualification, and nothing has occurred subsequent to the date hereof, there are of such favorable determination letter that reasonably could be expected to adversely affect the qualified status of any such plan.
(g) There is no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf (i) complaint, claim, charge, suit, proceeding or other action of or against any kind with respect to any Company Benefit Plan or ERISA Affiliate Plan (other than a routine claim for benefits in accordance with such Company Benefit Plan’s or ERISA Affiliate Plan’s claims procedures and that have not resulted in any litigation) or (ii) proceeding, the assets examination, audit, inquiry, investigation, citation, or other action of any trust under kind in or before any Governmental Body with respect to any Company Benefit Plan or ERISA Affiliate Plan and there exists no state of facts that after notice or lapse of time or both reasonably could be expected to give rise to any such claim, investigation, examination, audit or other proceeding or to affect the registration of any Company Benefit Plan or ERISA Affiliate Plan required to be registered. All benefit claims will be paid in accordance with Applicable Benefit Laws and the terms of the applicable Company Benefit Plan or ERISA Affiliate Plan.
(h) All contributions and premium payments (including all employer contributions and employee salary reduction contributions) that are due with respect to each Company Benefit Plan have been made within the time periods prescribed by ERISA and the Code, and all contributions and premium payments for any period ending on or before the Closing Date that are an obligation of the Company and not yet due have either been made to such Company Benefit Plan, or have been accrued on the plan sponsor, plan administrator or any fiduciary or any Company’s financial statements delivered to Parent.
(i) With respect to each Company Benefit Plan that is an employee welfare benefit plan (within the meaning of Section 3(1) of ERISA), all claims incurred by the Company are (i) insured pursuant to a contract of insurance whereby the insurance company bears any risk of loss with respect to such claims, (ii) covered under a contract with a health maintenance organization (an “HMO”), pursuant to which the administration HMO bears the liability for claims, or operation (iii) reflected as a liability or accrued for on the Company’s financial statements delivered to Parent. Except as set forth on Part 2.17(i) of such plansthe Company Disclosure Schedule, other than routine claims for benefits.
(e) No no Company Benefit Plan provides for post-retirement or post-employment welfare has ever provided benefits, including death, medical or health benefits to former employees (whether or not insured), after an Employee’s termination of employment, and the Company, Company does not have any liabilities (contingent or otherwise) with respect thereto other than (A) continuation coverage required pursuant to Section 4980B of the Code or and Part 6 of Title I of ERISA, and the regulations thereunder, and any similar Law.
(f) Each Company other Applicable Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its SubsidiariesLaws, (B) increase the amount death benefits or value of retirement benefits under any employee pension benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractorplan, (C) result in deferred compensation benefits, reflected as liabilities on the acceleration of the time of paymentCompany’s financial statements delivered to Parent, vesting or funding of any such benefit or compensation or (D) except as would benefits the full cost of which is borne by the current or former Employee (or the employee’s beneficiary).
(j) The transactions contemplated by this Agreement will not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually (either alone or in combination with any other event) in: (i) any payment of, or increase in, remuneration or benefits, to any Employee, officer, director or consultant of the Company; (ii) any cancellation of indebtedness owed to the Company by any Employee, officer, director or consultant of the Company; (iii) the funding or time of any payment or benefitbenefit to any Employee, constitute an officer, director or consultant of the Company; or (iv) result in any “excess parachute payment” within the meaning of Section 280G of the CodeCode (whether or not such payment is considered to be reasonable compensation for services rendered).
(hk) No person is entitled The Company has not announced or entered into any plan or binding commitment to receive (i) create or cause to exist any additional payment Company Benefit Plan, or (including ii) adopt, amend or terminate any tax gross up payment) from Company Benefit Plan, other than any amendment required by Applicable Benefit Laws. Each Company Benefit Plan may be amended or terminated in accordance with its terms without liability to the Company or any of Surviving Corporation, its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the CodeParent.
(il) Each Part 2.17(l) of the Company Disclosure Schedule identifies each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) within the meaning of the Code) that is subject to Section 409A of the Code is and associated Treasury Department guidance, including IRS Notice 2005-1 (each a “NQDC Plan”). With respect to each NQDC Plan, it either (A) has been operated in compliance in all material respects with Code Section 409A since January 1, 2005, or (B) does not provide for the payment of any benefits that have or will be deferred or vested after December 31, 2004 and since October 3, 2004, it has not been “materially modified” within the meaning of Section 409A of the CodeCode and associated Treasury Department guidance, including IRS Notice 2005-1, Q&A 18.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 2 contracts
Samples: Merger Agreement (Applied Micro Circuits Corp), Merger Agreement (Applied Micro Circuits Corp)
Company Benefit Plans. (a) Section 3.18(a3.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “Schedule lists all employee benefit plan” plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), whether or not subject to ERISA ERISA, and (ii) other employment, individual consulting, all bonus, stock option, stock purchase or other equity-basedpurchase, benefitrestricted stock, incentive compensation, profit sharing, savings, retirement, disability, vacationincentive, deferred compensation, severanceretiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all retention, bonus, employment, termination, retention, change of control and other similar fringe, welfare severance or other employee benefit plancontracts or agreements to which Company or Company Bank or any of their respective ERISA Affiliates (as hereinafter defined) is a party, programcurrently maintains, agreement, contract, policy contributes to or binding arrangement (whether or not in writing) maintained or contributed to sponsors for the benefit of any current or former employee, individual consultant officer, director or director independent contractor of Company or Company Bank or any of their respective ERISA Affiliates or for which Company or Company Bank could otherwise have any current or future material liability or material obligations (all such plans, programs, arrangements, contracts or agreements, whether or not listed on Section 3.11(a) of the Company Disclosure Schedule, collectively, the “Company Benefit Plans”).
(b) Company has made available to Purchaser true, correct and complete copies of the following (as applicable) with respect to each Company Benefit Plan: (i) the written document evidencing such Company Benefit Plan or, if such Company Benefit Plan is not in writing, a written description of the material terms thereof, and all amendments, modifications or material supplements thereto, (ii) the annual report (Form 5500), if any, filed with the U.S. Internal Revenue Service (“IRS”) for the last two plan years, (iii) the most recently received IRS determination letter, if any, (iv) the most recently prepared actuarial report or financial statement, if any, (v) the most recent summary plan description, if any (or other descriptions of such Company Benefit Plan provided to Employees) and all modifications thereto, (vi) all material correspondence with the Department of Labor or the IRS, (vii) the most recent nondiscrimination tests performed under ERISA and the Code, (viii) all contracts with third-party administrators, compensation consultants and other service providers that related thereto, and (ix) any related trust agreements, insurance contracts or documents of any other funding arrangements relating thereto. Except as specifically provided in the foregoing documents delivered or made available to Purchaser, there are no amendments to any Company Benefit Plans that have been adopted or approved nor has Company or Company Bank undertaken to make any such amendments or to adopt or approve any new Company Benefit Plans. No Company Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside of the United States.
(c) Except as set forth on Section 3.11(c) of the Company Disclosure Schedule, (i) each Company Benefit Plan has been established, operated and administered in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code, and (ii) the Company 401(k) Plan (as defined in Section 6.5(e)) complies with all applicable Laws. Except as set forth on Section 3.11(c) of the Company Disclosure Schedule, during the six years preceding the date of this Agreement, neither Company nor any of its SubsidiariesSubsidiaries has taken any action to take corrective action or make a filing under any voluntary correction program of the IRS, Department of Labor or any other Governmental Entity with respect to any Company Benefit Plan, and, to Company’s Knowledge, no plan defect exists that would qualify for correction under any such program.
(d) Except as set forth on Section 3.11(d) of the Company Disclosure Schedule, each Company Benefit Plan that is a “nonqualified deferred compensation plan” as defined in and subject to Section 409A of the Code (a “Nonqualified Deferred Compensation Plan”) has been maintained and operated in compliance with Section 409A of the Code and all applicable regulatory guidance thereunder (including, but not limited to, Treasury Regulations). No assets set aside for the payment of benefits under any Nonqualified Deferred Compensation Plan are held outside of the United States, except to the extent that substantially all of the services to which such benefits are attributable have been performed in the jurisdiction in which such assets are held.
(e) Section 3.11(e) of the Company Disclosure Schedule identifies each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code (the “Qualified Plans”). The IRS has issued a favorable determination letter with respect to each Qualified Plan and the related trust that has not been revoked or threatened to be revoked, and, to Company’s Knowledge, no circumstances or events have occurred that would reasonably be expected to adversely affect the qualified status of any Qualified Plan or the related trust or increase the costs relating thereto. No trust funding any Plan is intended to meet the requirements of Code Section 501(c)(9).
(f) Except as set forth on Section 3.11(f) of the Company Disclosure Schedule, none of the Company and its Subsidiaries nor any of their respective ERISA Affiliates has, at any time during the last six years, contributed to or been obligated to contribute to any plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code (a “Title IV Plan”). Except as set forth on Section 3.11(f) of the Company Disclosure Schedule, with respect to each Title IV Plan, (i) no liability under Title IV or Section 302 of ERISA has been incurred by the Company or any of its Subsidiaries or any of their respective ERISA Affiliates that has any current or future Liability (the “Company Benefit Plans”). As of not been satisfied in full prior to the date hereof, with respect and no condition exists that presents a risk to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or Company Bank or any of its Subsidiaries under Section 414 their ERISA Affiliates of the Code maintains incurring or has being subject to any liability or obligation thereunder, (ii) no reportable event (within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in meaning of Section 3(2) 4043 of ERISA), subject other than an event for which the reporting requirements have been waived by regulations, has occurred within the six years prior to the date hereof or is expected to occur as a result of the transactions contemplated by this Agreement, (iii) no failure to meet the minimum funding standard under Section 412 or 430 of the Code or Section 302 or 303 of ERISAERISA has occurred, (iv) all contributions (including installments) required by Section 301 of ERISA and Sections 412 or 430 of the Code have been timely made, (v) no funding waiver has been applied for or been received or any amortization period extended within the meaning of Section 412 of the Code or Title IV Section 302 or 303 of ERISA, (2vi) there are no funding-based limitations, within the meaning of Section 436 of the Code, currently in effect, (vii) none of the assets of Company or Company Bank are the subject of any lien arising under ERISA or Section 430(k) of the Code, and the Company has not been required to post any security under ERISA or Section 401(a)(29) of the Code, and no fact or event exists that would reasonably be expected to give rise to any such lien or requirement to post any such security, (viii) all premiums (and interest charges and penalties for late payment, if applicable) have been paid when due to the Pension Benefit Guaranty Corporation, (ix) there has been no event described in Section 4062(e) of ERISA, and the transactions contemplated by this Agreement will not result in any event described in Section 4062(e) of ERISA, and (x) no notice of intent to terminate any Title IV Plan has been filed and no amendment to treat a Title IV Plan as terminated has been adopted and no proceeding has been commenced by the PBGC to terminate any Title IV Plan. None of Company and its Subsidiaries nor any of their respective ERISA Affiliates has, at any time during the last six years, contributed to or been obligated to contribute to any plan that is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 Multiemployer Plan”) or 4064 a plan that has two or more contributing sponsors at least two of ERISA).
(c) Each Company Benefit Plan has been maintainedwhom are not under common control, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 4063 of ERISA (a “Multiple Employer Plan”); and Section 4975 none of the Code Company any of its Subsidiaries nor any of their respective ERISA Affiliates has occurred incurred any liability to a Multiemployer Plan or is reasonably expected to occur with respect to any Company Benefit 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 such Multiemployer Plan or Multiple Employer Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent eventsExcept as set forth on Section 3.11(g) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or Disclosure Schedule, neither Company nor any of its SubsidiariesSubsidiaries sponsors, (B) increase the amount has sponsored or value of has any benefit or compensation otherwise payable or required to be provided obligation with respect to any such directoremployee benefit plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, employee former or independent contractorcurrent Employees or beneficiaries or dependents thereof, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of required by Section 280G 4980B of the Code. Company and Company Bank have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or medical or life insurance coverage, and no representations or commitments, whether or not written, have been made that would limit Company’s or Company Bank’s right to amend, terminate or modify any such benefits.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement hereof, have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreementhereof, have been fully reflected on the consolidated financial statements books and records of Company.
(i) Except as set forth on Section 3.11(i) of the Company included Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) result in, cause the vesting, exercisability or delivery of, or increase in the amount or value of, any payment, right or other benefit to any employee, officer, director or other service provider of Company SEC Reportor Company Bank, or result in any limitation on the right of Company or Company Bank to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by Company or Company Bank in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code, or otherwise.
(j) There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability (as hereinafter defined) that would be a material liability of Company, Company Bank or any of their ERISA Affiliates following the Closing. Without limiting the generality of the foregoing, neither Company nor any of its ERISA Affiliates has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA.
(k) None of Company or Company Bank nor any of their respective ERISA Affiliates or any Person now or previously employed by Company, including any fiduciary, has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the Company Benefit Plans or their related trusts, Company, Company Bank, any of their respective ERISA Affiliates or any Person that Company or Company Bank has an obligation to indemnify with respect to such prohibited transaction, to any material Tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA.
(l) There are no pending or, to Company’s Knowledge, threatened claims (other than claims for benefits in the ordinary course of business), lawsuits or arbitrations which have been asserted or instituted, and, to Company’s Knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Company Benefit Plans, any fiduciaries thereof with respect to their duties to the Company Benefit Plans or the assets of any of the trusts under any of the Company Benefit Plans which could reasonably be expected to result in any material liability of Company or Company Bank to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any Multiemployer Plan, a Multiple Employer Plan, any participant in a Company Benefit Plan, or any other party.
(m) Each individual who renders services to Company or Company Bank who is classified by Company or Company Bank, as applicable, as having the status of an independent contractor or other non-employee status for any purpose (including for purposes of taxation and tax reporting and under Company Benefit Plans) is properly so characterized.
(n) Except as set forth on Section 3.11(n) of the Company Disclosure Schedule, no deduction of any amount payable pursuant to the terms of any Company Benefit Plan has been disallowed or is subject to disallowance under Section 162(m) of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Emclaire Financial Corp), Merger Agreement (Emclaire Financial Corp)
Company Benefit Plans. (a) Section 3.18(a) of the Company Disclosure Letter sets forth a complete and accurate list of Schedule 3.19 lists each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, Company nor any of its Subsidiaries ERISA Affiliates has ever maintained, sponsored, contributed to, or any other trade had an obligation to maintain, sponsor or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains contribute to, or has within the last six (6) years contributed any liability under or with respect to (1i) an a “employee pension defined benefit plan,” (as defined in Section 3(23(35) of ERISA), (ii) a pension plan subject to the minimum funding standards of Section 302 of ERISA, ERISA or Section 412 of the Code or Title IV of ERISACode, (2iii) a “multiemployer plan,” within the meaning of as defined in Section 4001(a)(33(37) of ERISA or ERISA, (3iv) a “multiple employer plan” (as defined within the meaning of Section 413 of the Code), (v) a “voluntary employees’ beneficiary association” (within the meaning of Section 501(c)(9) of the Code), (vi) an organization or trust described in Sections 501(c)(17) or 501(c)(20) of the Code or (vii) a “welfare benefits fund” described in Section 4063 419(e) of the Code. No current or 4064 former employee, officer, director, consultant or other service provider of ERISAthe Company or any of its Subsidiaries is or may become entitled under any Company Benefit Plan to receive health, life insurance or other welfare benefits (whether or not insured), beyond their retirement or other termination of service, other than health continuation coverage as required by Section 4980B of the Code.
(c) Each Company Benefit Plan has been maintained, operated and administered, administered in all material respects, respects in compliance accordance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Each Company Benefit Plan intended to be qualified under Section 406 of ERISA and Section 4975 401(a) of the Code has either received a favorable determination letter from the IRS or may rely on a favorable opinion letter issued by the IRS, and, to the Knowledge of the Company, nothing has occurred since the date of such determination or is opinion letter that would reasonably be expected to occur with respect to any Company Benefit Planadversely affect such qualification.
(d) As of the date hereofExcept as would not be reasonably likely to result in a Material Adverse Effect, there are no Legal Proceedings actions, suits, audits or investigations by any Governmental Authority or other claims (except for routine claims for benefits) pending or, to the Knowledge of the Company, threatened on behalf of threatened, against or against involving any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or and delivery of this Agreement, nor the consummation of the Transactions transactions contemplated hereby will (either whether alone or upon the occurrence of any additional or subsequent further acts or events) (Ai) result in any payment or benefit becoming due or payable, or required to be provided, to any directorcurrent or former employee, employee officer, director or independent contractor of the Company or any Subsidiary thereof or satisfy any prerequisite (whether exclusive or non-exclusive) to any payment or benefit to any current or former employee, director or independent contractor of its Subsidiariesthe Company or any Subsidiary thereof, (Bii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to benefits under any such director, employee or independent contractorCompany Benefit Plan, (Ciii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes benefits under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for or (iv) result in the forgiveness of any period through the date indebtedness of this Agreement have been timely made any current or paid in full in all material respects orformer employee, to the extent not required to be made officer, director or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements independent contractor of the Company included in the Company SEC Reportor any Subsidiary thereof.
Appears in 1 contract
Samples: Securities Purchase Agreement (Conversion Labs, Inc.)
Company Benefit Plans. (a) Section 3.18(a) of the Company Disclosure Letter Schedule 4.13 sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA ERISA, and (ii) any other employmentplan, individual consultingpolicy, bonusContract or program providing compensation, stock option, stock purchase severance protection or other equity-basedbenefits (including, benefitwithout limitation, incentive compensationhealth, profit sharing, savingswelfare, retirement, disability, vacation, deferred compensation, severance, termination, retentionincentive, change of in control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writingdeferred compensation benefits) maintained or contributed to for the benefit of any current or former employeedirector, officer, individual consultant or director employee of the Company or any of its Subsidiaries, which are maintained, sponsored or with respect contributed to by the Company or any of its Subsidiaries or under which the Company or any of its Subsidiaries or ERISA Affiliates has any current current, future or future Liability contingent obligation or liability, excluding any plan or program that is sponsored solely by a Governmental Authority (the each a “Company Benefit PlansPlan”), in each case, that is material. As Notwithstanding the foregoing, no employment agreement need be set forth on Schedule 4.13 if such employment agreement (i) relates to an employee who performs services primarily outside of the date hereofUnited States, with (ii) is in all material respects in a form that is identified on Schedule 4.13 and (iii) does not provide any severance or notice period in excess of ninety (90) days or such longer period as may be required by applicable Laws.
(b) With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent complete and accurate Buyer copies of (Ai) each Company Benefit Plan and trust document, as amended to date, (ii) the most recent summary plan description provided to participants for each Company Benefit Plan for which such summary plan description is required and all summaries of material modifications, (iii) all reports and returns filed with any regulatory agency or other Governmental Authority for the three most recent plan years, including the most recent annual report reports on Form 5500 and all attachments thereto filed with the IRSInternal Revenue Service with respect to such Company Benefit Plan (if applicable), including all schedules thereto; (Biv) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(aInternal Revenue Service and (v) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related all trust agreements, insurance contracts, insurance policies Contracts or other documents of any funding arrangements; arrangements and (E) any written notices amendments related to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(bc) (i) Each Company Benefit Plan has been administered in all material respects accordance with its terms and all applicable Laws, including ERISA and the Code; (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been timely made in accordance with the terms of the applicable Company Benefit Plan, all applicable Laws and GAAP; and (iii) each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code (A) has received a favorable determination or opinion letter as to its qualification, (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (C) has an application for a determination or opinion letter pending or has time remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter.
(d) No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) (a “Multiemployer Plan”) or other pension plan, in each case that is subject to Title IV of ERISA, and neither the Company nor any of its ERISA Affiliates has sponsored, maintained, participated in or been required to contribute to any Multiemployer Plan or other pension plan subject to Title IV of ERISA at any time within the previous six (6) years. Neither the Company nor any ERISA Affiliate has incurred or would reasonably be expected to incur any liability under Title IV of ERISA that has not been paid in full.
(e) (i) No material actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the knowledge of the Company, threatened, and (ii) to the knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such material actions, suits or claims.
(f) Except as required by applicable Law, no Company Benefit Plan provides any retiree medical, dental or life insurance benefits to any Person. No Company Benefit Plan is a voluntary employee benefit association under Section 501(a)(9) of the Code or a “multiple employer plan” within the meaning of Sections 4063, 4064 or 4066 of ERISA. The Company has no obligation to reimburse or otherwise “gross-up” any Person for any Taxes or any interest or penalty related thereto in connection with any Company Benefit Plan.
(g) Each Company Benefit Plan that constitutes a “non-qualified deferred compensation plan” within the meaning of Section 409A of the Code complies in both form and operation with the requirements of Section 409A of the Code so that no material amounts paid pursuant to any such Company Benefit Plan are subject to Taxes under Section 409A of the Code.
(h) None of the Company, any of its Subsidiaries nor any ERISA Affiliate maintains, sponsors or has any other trade liability with respect to any Company Benefit Plan that is subject to the Laws of any jurisdiction outside the United States.
(i) Except as set forth on Schedule 4.13(i), no Company Benefit Plan exists that, as a result of the execution of this Agreement or business the transactions contemplated by this Agreement (whether alone or not incorporatedin connection with any subsequent event(s)) which would reasonably be treated as a single employer with expected to: (i) entitle any employee, director, officer or independent contractor of the Company or any of its Subsidiaries under Section 414 of the Code maintains to severance pay, unemployment compensation or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code any other payment or Title IV of ERISAbenefit, (2ii) a “multiemployer plan” within accelerate the meaning time of Section 4001(a)(3) payment or vesting, or increase the amount of ERISA compensation or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect benefit due to any employee, director, officer or independent contractor, (iii) directly or indirectly cause the Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of transfer or against set aside any Company Benefit Plan, the assets of to fund any trust benefits under any Company Benefit Plan, (iv) otherwise give rise to any material liability under any Company Plan or (v) limit or restrict the plan sponsorright to amend, plan administrator terminate or any fiduciary or transfer the assets of any Company Benefit Plan with respect to on or following the administration or operation of such plans, other than routine claims for benefitsClosing.
(ej) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees exists that, as a result of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor Agreement or the consummation of the Transactions will transactions contemplated by this Agreement (either whether alone or upon the occurrence of in connection with any additional or subsequent eventsevent(s)) (A) could result in any payment or benefit becoming due or payable, or required to be provided, that would constitute an “excess parachute payment” (as such term is defined in Section 280G(b)(1) of the Code) to any current or former employee, director, employee officer or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (Aramark)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a an accurate and complete and accurate list list, as of the date hereof, of each material (i) Company Benefit Plan. For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) or any other plan, whether policy, practice, program, agreement or not subject to ERISA and other arrangement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, retirement, supplemental retirement, profit sharing, change of control and other in control, vacation, sick, insurance, medical, welfare, fringe or similar fringeplan, welfare or other employee benefit planpolicy, program, agreement, contract, policy agreement or binding arrangement (whether other arrangement) providing compensation or not in writing) maintained other benefits or contributed remuneration to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable Law and maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent SPAC, to the extent applicable, true, complete and accurate correct copies of (A) the most recent annual report on Form 5500 filed with the IRSsuch Company Benefit Plan (or, including if not written a written summary of its material terms) and all schedules plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto; , (B) the most recent determination letter from summary plan descriptions, including any summary of material modifications (C) the three (3) most recent annual reports (Form 5500 series) filed with the IRS for with respect to such Company Benefit Plan, (D) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, (E) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or any pending request for such a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; determination letter and (EF) any written notices all material correspondence to or from any Governmental Authority relating to any material compliance issues in respect the IRS, the United States Department of any such Company Labor (“DOL”), the Pension Benefit Plan.
(b) Neither the Company, any of its Subsidiaries Guaranty Corporation or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within Governmental Authority received in the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or three (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur years with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 4.12(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA and (ii) any other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit material written plan, program, agreement, contract, policy or binding arrangement (whether program providing compensation or not in writing) maintained or contributed other benefits to for the benefit of any current or former director, officer or employee, individual consultant in each case that is maintained, sponsored or director of contributed to by the Company or any of its the Company Subsidiaries, or with respect to and under which the Company or any of its the Company Subsidiaries has any current material obligation or future Liability liability (the each a “Company Benefit PlansPlan”). As of the date hereof, with With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent Acquiror correct and complete copies of, if applicable, (i) such Company Benefit Plan and accurate copies of any trust agreement, (Aii) the most recent summary plan description, (iii) the most recent annual report on Form 5500 filed with the IRSInternal Revenue Service, including all schedules thereto; and (Biv) the most recent determination or opinion letter from issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit PlanInternal Revenue Service.
(b) Neither Each Company Benefit Plan is in compliance in all material respects with its terms and all applicable Laws, including ERISA and the Code. With respect to the Company Benefit Plans, no Actions (other than routine claims for benefits in the ordinary course) are pending or, to the knowledge of the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with threatened against the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee Company Subsidiaries. No Company Benefit Plan is a multiemployer pension benefit plan” plan (as defined in Section 3(23(37) of ERISA)) (a “Multiemployer Plan”) or other pension plan, in each case, that is subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” that is intended to be qualified within the meaning of Section 406 of ERISA and Section 4975 401(a) of the Code (i) has received a favorable determination or opinion letter as to its qualification, (ii) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (iii) has time remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter. To the knowledge of the Company, no circumstances have occurred during the past three (3) years that would reasonably be expected to adversely affect the tax qualified status of any such Company Benefit Plan. Nothing has occurred or is reasonably expected to occur with respect to any Company Benefit PlanPlan that has subjected or could reasonably be expected to subject the Company, any Company Subsidiary or any of their ERISA Affiliates or, with respect to any period on or after the Closing Date, the Surviving Corporation or the Acquiror or any of their Affiliates, to a penalty under Section 502 of ERISA or to tax or penalty under Section 4975 of the Code. All material benefits, contributions and premiums relating to each Company Benefit Plan have been timely paid in accordance with the terms of such Company Benefit Plan and all applicable Laws and accounting principles, and all benefits accrued under any unfunded Company Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan that is an employee welfare benefit plan (within the meaning of Section 3(1) of ERISA) provides for post-retirement continuing benefits or post-employment welfare benefits coverage for any participant or beneficiary of a participant after such participant’s termination of employment, except to former employees the extent required by Law, and there has been no material violation of the Company, other than pursuant to Section 4980B of the Code or Sections 601-608 of ERISA by the Company with respect to any similar Lawsuch Benefit Plan.
(e) Neither the Company nor any Company Subsidiary maintains a Title IV Benefit Plan, and no liability under Title IV or Section 302 of ERISA has been incurred by the Company during the past three (3) years that has not been satisfied in full.
(f) Each Company Benefit Plan that is intended subject to be “qualified” under Section 401 409A of the Code has received a favorable determination letter from been administered in material compliance with its terms and the IRS to such effect operational and nothing has occurred or is reasonably expected to cause the loss documentary requirements of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation Section 409A of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company Code and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. The Company does not have any tax obligation to gross up payment) from the Company up, indemnify or otherwise reimburse any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(ig) Each Except as disclosed on Schedule 4.12(g) neither the execution and delivery of this Agreement by the Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) nor the consummation of the Code) transactions contemplated by this Agreement will result in the acceleration or creation of any rights of any director, officer or employee of the Company or any of the Company Subsidiaries to payments or benefits or increases in any payments or benefits or any loan forgiveness, in each case, from the Company or any of the Company Subsidiaries. Neither the Company nor any of the Company Subsidiaries is obligated to make a payment as a result of the transactions contemplated by this Agreement that is subject to would not be deductible under Section 409A 280G of the Code is in compliance in all material respects with or subject to an excise Tax under Section 409A 4999 of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material (i) Company Benefit Plan. For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) or any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former employeedirector, officer, individual consultant or director employee of the Company or any of its the Company’s Subsidiaries, which are maintained, sponsored or contributed to by the Company or any of the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority. With respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, complete and accurate correct copies of (A) such Company Benefit Plan (or, if not written a written summary of its material terms) and all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (B) the most recent summary plan description, including any summary of material modifications, (C) the most recent annual report on (Form 5500 series) filed with the IRSIRS with respect to such Company Benefit Plan, including all schedules thereto; (BD) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, and (E) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit PlanPlan and any pending request for such a determination letter.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a4.12(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) and any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase equity or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director contributed to by the Company or any of the Company’s Subsidiaries, or to which the Company or any of the Company’s Subsidiaries is a party or has or may have any liability, and in each case whether or not (i) subject to the Laws of the United States, (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority (each, without regard to materiality, a “Company Benefit Plan”). The Company has made available to Acquiror, to the extent applicable, true, complete and correct copies of (A) each material Company Benefit Plan (or, if not written a written summary of its material terms), including all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (B) the most recent summary plan descriptions, including any summary of material modifications (C) the most recent annual report (Form 5500 series) filed with the IRS with respect to such Company Benefit Plan, (D) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, and (E) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan and any pending request for such a determination letter.
(b) Except as set forth on Section 4.12(b) of the Company Disclosure Letter, (i) each Company Benefit Plan has been operated and administered in material compliance with its terms and all applicable Laws, including ERISA and the Code; (ii) in all material respects, all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Company’s financial statements to the extent required by GAAP; (iii) each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to its qualification or may rely upon an opinion letter for a prototype plan and, to the knowledge of the Company, no fact or event has occurred that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan; (iv) to the knowledge of the Company, there has not been any “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code, other than a transaction that is exempt under a statutory or administrative exemption) with respect to any Company Benefit Plan or that would not reasonably be expected to result in material liability to the Company or any of its Subsidiaries; and (v) neither the Company nor, to the knowledge of the Company, any other “fiduciary” (as defined in Section 3(21) of ERISA) has any material liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company Benefit Plan.
(c) No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other pension plan that is subject to Title IV of ERISA, Section 412 of the Code, or with respect to which Section 302 of ERISA (“Title IV Plan”) and neither the Company or nor any of its Subsidiaries ERISA Affiliates has sponsored or contributed to, been required to contribute to, or had any current actual or future Liability contingent liability under, a Multiemployer Plan, Title IV Plan or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), in each case, at any time within the “previous six (6) years. Neither the Company Benefit Plans”). As nor any of the date hereof, with its ERISA Affiliates has incurred any withdrawal liability under Section 4201 of ERISA that has not been fully satisfied.
(d) With respect to each Company Benefit Plan, to no material actions, suits or claims (other than routine claims for benefits in the extent applicable, the Company has made available to Parent complete and accurate copies of (Aordinary course) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge knowledge of the Company, threatened on behalf of or against any Company Benefit Planthreatened, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect and to the administration knowledge of the Company, no facts or operation of circumstances exist that would reasonably be expected to give rise to any such plansactions, other than routine claims for benefitssuits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for post-retirement employees or post-employment welfare benefits to former employees of the CompanyCompany or any Subsidiary for periods extending beyond their retirement or other termination of service, other than pursuant to Section 4980B (i) coverage mandated by applicable Law or (ii) benefits the full cost of which is borne by the Code current or any similar Lawformer employee (or his or her beneficiary).
(f) Each Company Benefit Plan that is intended to be “qualified” under Except as set forth on Section 401 4.12(f) of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this AgreementCompany Disclosure Letter, nor the consummation of the Transactions transactions contemplated hereby will (not, either alone or upon in combination with another event (such as termination following the occurrence consummation of the transactions contemplated hereby), (i) entitle any additional current or subsequent events) (A) result in any payment former employee, officer or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor other service provider of the Company or any Subsidiary of its Subsidiaries, (B) increase the amount Company to any severance pay or value of any benefit other compensation or compensation otherwise benefits payable or required to be provided to by the Company or any such director, employee Subsidiary of the Company or independent contractor, (Cii) result in the acceleration of accelerate the time of payment, vesting funding or funding vesting, or increase the amount of compensation or benefits (including Company Awards) due any such benefit employee, officer or compensation or (D) except as would not be material to other individual service provider by the Company and its Subsidiaries taken as or a wholeSubsidiary of the Company. The consummation of the transactions contemplated hereby will not, result in the payment of any amount that could, individually either alone or in combination with another event, result in any other payment or benefit, constitute an “excess parachute payment” within the meaning of under Section 280G of the Code to any current or former employee, officer or other individual service provider of the Company or a Subsidiary of the Company. No Company Benefit Plan provides for a Tax gross-up, make whole or similar payment with respect to the Taxes imposed under Sections 409A or 4999 of the Code.
(hg) No person is entitled to receive any additional payment (including any tax gross up payment) from All Company Awards have been granted in accordance with the terms of the Company or any of its Subsidiaries as a result Incentive Plan. Each Company Option has been granted with an exercise price that is no less than the fair market value of the imposition underlying Company Common Stock on the date of additional taxes grant, as determined in accordance with Section 409A of the Code or Section 422 of the Code, if applicable. Each Company Option is intended to either qualify as an “incentive stock option” under Section 4999 422 of the Code or to be exempt under Section 409A of the Code.
. The Company has made available to Acquiror, accurate and complete copies of (i) Each the Company Benefit Plan Incentive Plan, (ii) the forms of standard award agreement under the Company Incentive Plan, (iii) copies of any award agreements that is materially deviate from such forms and (iv) a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) list of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to outstanding equity and equity based awards granted under any Company Benefit Plan by applicable LawIncentive Plan, any plan document or other contractual undertakingtogether with the material terms thereof (including but not limited to grant date, exercise price, vesting terms, form of award, expiration date, and all premiums due or payable with respect to insurance policies funding any number of shares underlying such award). The treatment of Company Benefit Plan, for any period through the date of Awards under this Agreement have been timely made or paid in full in all material respects or, to does not violate the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements terms of the Company included in Incentive Plan or any Contract governing the Company SEC Reportterms of such awards.
Appears in 1 contract
Samples: Merger Agreement (One)
Company Benefit Plans. (a) Section 3.18(a) of the Company Disclosure Letter sets forth a complete and accurate list of Schedule 4.13 lists each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA ) and (ii) each other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit material compensation plan, program, agreementagreement or arrangement that is maintained, contract, policy or binding arrangement (whether or not in writing) maintained sponsored or contributed to by the Company for the benefit of any its current or former employee, individual consultant or director of the Company or any of its Subsidiaries, employees or with respect to which the Company or any of its Subsidiaries has any current or future Liability liability (collectively, the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the The Company has made available to Parent Buyer true and complete and accurate copies of (Ai) each Company Benefit Plan and any summary plan descriptions thereof, (ii) Forms 5500 in each of the most recent annual report on Form 5500 filed with the IRSthree (3) plan years, including all schedules thereto; , (Biii) with respect to any Company Benefit Plan that purports to meet the requirements of Section 401(a) of the Code, the most recent determination letter from issued by the IRS IRS, (iv) all material notices that were given by any Governmental Authority to the Company any Company Benefit Plan during the past five (5) years, and (v) any trust documents, funding vehicles and any material third-party Contracts with respect to such Company Benefit Plan. The Company does not utilize a “professional employer organization” (PEO), employee leasing company or other similar organization to provide benefits to its workforce. No Company Benefit Plan is subject to non-U.S. law.
(b) Each Company Benefit Plan has been operated in material compliance with its terms and the requirements of such Company Benefit Plan and all applicable Laws. No proceeding is pending or, to the knowledge of the Company, threatened with respect to any Company Benefit Plan (other than claims for any benefits in the ordinary course of business) that could reasonably be expected to result in material liability to the Company.
(c) Each Company Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code; (C) Code has received a favorable determination or opinion letter from the plan documents and summary plan descriptionsIRS, or has pending or has time remaining in which to file an application for such a written description determination from the IRS. There has been no prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the terms of Code, other than a transaction that is exempt under a statutory or administrative exemption) with respect to any Company Benefit Plan that is not could result in writing; (D) any related trust agreementsa Material Adverse Effect. No suit, insurance contractsadministrative proceeding, insurance policies action or other documents litigation has been brought, or to the knowledge of any funding arrangements; and (E) any written notices the Company, is threatened against or with respect to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan, including any audit or inquiry by the IRS or United States Department of Labor (other than routine benefits claims) that could reasonably be expected to result in a Material Adverse Effect.
(bd) Neither the CompanyNo Company Benefit Plan is, any none of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or nor any of its Subsidiaries under Section 414 of the Code maintains or ERISA Affiliate has within the last six (6) years ever maintained, contributed to (1) or otherwise had an “employee pension benefit plan” (as defined obligation in Section 3(2) of ERISA)respect of, subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(33(37) of ERISA or (3) a “multiple employer pension plan” (as defined in under Section 4063 or 4064 3(2) of ERISA that is subject to Title IV of ERISA).
(c) Each . No Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Lawthat is funded include securities issued by the Company or any ERISA Affiliate. No nonexempt Company Benefit Plan is funded by or associated with a “prohibited transactionvoluntary employee’s beneficiary association” within the meaning of Section 406 of ERISA and Section 4975 501(c)(9) of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefitsCode.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or and delivery of this Agreement, nor the consummation of the Transactions will (transactions contemplated hereby, either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with another event (whether contingent or otherwise) would, as of the Closing, reasonably be expected to give rise to any other payment or benefit, constitute an “excess parachute payment” within the meaning of under Section 280G of the Code. Section 4.13(e) of the Disclosure Schedule discloses each: (i) agreement with any stockholder, director, executive officer or other key employee of the Company (A) the benefits of which are contingent, or the terms of which are altered, upon the occurrence of a transaction involving the Company of the nature of any of the transactions contemplated by this Agreement, (B) providing any term of employment or compensation guarantee or (C) providing severance benefits or other benefits after the termination of employment of such stockholder, director, executive officer or key employee; and (ii) agreement or plan binding the Company, including any stock option plan, stock appreciation right plan, restricted stock plan, stock purchase plan, severance benefit plan or Company Benefit Plan, any of the benefits of which 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.
(hf) No person is entitled Except as required by Law, no Company Benefit Plan provides any post-employment medical or life insurance benefits, except for those contractual obligations to receive pay or reimburse any additional payment (including any tax gross up paymentpremiums an employee or former employee may pay in order to obtain health coverage under Section 4980B(b) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 Code or Section 409A of the Codeother applicable similar law regarding health care coverage continuation (collectively, “COBRA”) set forth on Schedule 4.13(f).
(ig) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Code Section 409A(d)(1)) of has been operated in good faith compliance with Code Section 409A. No service provider to the CodeCompany has incurred liability for tax imposed under Section 409A(a)(1)(B) that is subject to Section 409A of the Code is in compliance connection with participation in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan or otherwise as a result of the service provider’s arrangements with the Company. No stock option or equity unit granted by applicable Law, any plan document the Company has an exercise price that has been or other contractual undertaking, and all premiums due may be less than the fair market value of the underlying stock or payable with respect to insurance policies funding any Company Benefit Plan, for any period through equity units (as the case may be) as of the date such option or unit was granted or has any feature for the deferral of this Agreement have been timely made compensation other than the deferral of recognition of income until the later of exercise or paid in full in all material respects or, to the extent not required to be made or paid on or before the date disposition of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Reportsuch option.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a4.17(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material Company Benefit Plan (iother than any individual Company Option award agreement, individual offer of employment letter or individual consulting agreement, in either case, that is consistent in all material respects with the applicable template set forth on Section 4.17(a) of the Company Disclosure Letter and that does not provide any accelerated vesting, retention, change in control or non-statutory severance payments or benefits). For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of ERISA)ERISA or any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit planbenefits to any director, programofficer, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employeemanager, individual consultant or director Employee of the Company or any of its the Company’s Subsidiaries, which are maintained, sponsored or contributed to by the Company or any of the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable Law and maintained by any Governmental Authority. With respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, complete and accurate correct copies of (A) the most recent annual report on Form 5500 filed with the IRSsuch Company Benefit Plan (or, including if not written a written summary of its material terms) and all schedules plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto; , (B) the most recent determination letter from the IRS for summary plan description, including any Company Benefit Plan that is intended to qualify under Section 401(a) summary of the Code; material modifications, (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies most recent actuarial report or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority financial statement relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination most recent non-routine correspondence with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the CodeGovernmental Authority.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date of this Agreement, of each material (i) “Company Benefit Plan. The term "Company 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"), whether or not subject to ERISA ERISA, and (ii) any other employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, change of control and other similar fringein control, welfare health, welfare, pension, retirement, supplemental retirement, profit-sharing, retiree health, fringe benefit or other employee benefit or compensation plan, policy, program, agreementagreement or arrangement, contractin each case, policy or binding arrangement (whether or not in writing) maintained or which are currently maintained, sponsored, contributed to or required to be contributed to by the Company or any of the Company's Subsidiaries for the benefit of any current or former director, officer, or employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its the Company's Subsidiaries is a party or has or may have any current liability (whether actual or future Liability contingent), and, in each case, whether or not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, complete and accurate correct copies of (A) the most recent annual report on Form 5500 filed with the IRSplan document, including all schedules thereto; amendments thereto (or, if not written a written summary of its material terms), (B) the most recent determination letter from the IRS for summary plan description, including any Company Benefit Plan that is intended to qualify under Section 401(a) summary of the Code; material modifications thereto, (C) the plan documents and summary plan descriptions, or a written description of most recent annual report (Form 5500 series) filed with the terms of any IRS with respect to such Company Benefit Plan that is not in writing; Plan, (D) any related trust agreements, insurance contracts, insurance policies the most recent actuarial report or other documents of any funding arrangements; financial statement relating to such Company Benefit Plan, and (E) any written notices to the most recent determination or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither opinion letter, if any, issued by the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur IRS with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a3.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “Schedule lists all employee benefit plan” plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), whether or not subject to ERISA ERISA, and (ii) other employment, individual consulting, all bonus, stock option, stock purchase or other equity-basedpurchase, benefitrestricted stock, incentive compensation, profit sharing, savings, retirement, disability, vacationincentive, deferred compensation, severanceretiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all retention, bonus, employment, termination, retention, change of control and other similar fringe, welfare severance or other employee benefit plancontracts or agreements to Table of Contents which Company or any Subsidiary or any of their respective ERISA Affiliates (as hereinafter defined) is a party, programcurrently maintains, agreement, contract, policy contributes to or binding arrangement (whether or not in writing) maintained or contributed to sponsors for the benefit of any current or former employee, individual consultant officer, director or director independent contractor of the Company or any Subsidiary or any of its Subsidiaries, their respective ERISA Affiliates or with respect to for which the Company or any of its Subsidiaries has Subsidiary could otherwise have any current or future Liability material liability or material obligations (all such plans, programs, arrangements, contracts or agreements, whether or not listed in Section 3.11(a) of the Company Disclosure Schedule, collectively, the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the .
(b) Company has made available to Parent Purchaser true, correct and complete and accurate copies of the following (Aas applicable): (i) the written document evidencing each Company Benefit Plan or, with respect to any such plan that is not in writing, a written description of the material terms thereof, and all amendments, modifications or material supplements to any Company Benefit Plan, (ii) the annual report (Form 5500), if any, filed with the U.S. Internal Revenue Service (“IRS”) for the last two plan years, (iii) the most recently received IRS determination letter, if any, relating to a Company Benefit Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Company Benefit Plan, (v) the most recent annual report on Form 5500 filed summary plan description, if any, for such Company Benefit Plan (or other descriptions of such Company Benefit Plan provided to employees) and all modifications thereto, (vi) all material correspondence with the Department of Labor or the IRS, including all schedules thereto; (Bvii) the most recent determination letter from nondiscrimination tests performed under ERISA and the Code, (viii) all contracts with third-party administrators, compensation consultants and other service providers that related to a Company Benefit Plan, and (ix) any related trust agreements, insurance contracts or documents of any other funding arrangements relating to a Company Benefit Plan. Except as specifically provided in the foregoing documents delivered or made available to Purchaser, there are no amendments to any Company Benefit Plans that have been adopted or approved nor has Company or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Company Benefit Plans. No Company Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside of the United States.
(c) During the six-year period preceding the date of this Agreement, each Company Benefit Plan has been established, operated and administered in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code. During the six years preceding the date of this Agreement, neither Company nor any of its Subsidiaries has taken any action to take corrective action or make a filing under any voluntary correction program of the IRS, Department of Labor or any other Governmental Entity with respect to any Company Benefit Plan, and to Company’s Knowledge no plan defect exists that would qualify for correction under any such program.
(d) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” as defined in Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) and any award thereunder, in each case that is subject to Section 409A of the Code, has (i) been maintained and operated in good faith compliance with Section 409A of the Code and IRS Notice 2005-1, (ii) not been “materially modified” (within the meaning of Notice 2005-1), and (iii) been in documentary and operational compliance with a reasonable interpretation of Section 409A of the Code. No assets set aside for the payment of benefits under any Nonqualified Deferred Compensation Plan are held outside of the United States, except to the extent that substantially all of the services to which such benefits are attributable have been performed in the jurisdiction in which such assets are held. Table of Contents
(e) Section 3.11(e) of the Company Disclosure Schedule identifies each Company Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code; Code (C) the plan documents “Qualified Plans”). The IRS has issued a favorable determination letter with respect to each Qualified Plan and summary plan descriptionsthe related trust and has not been revoked (nor has revocation been threatened), and to Company’s Knowledge no circumstances or a written description of events have occurred that would reasonably be expected to adversely affect the terms qualified status of any Company Benefit Qualified Plan that is not in writing; (D) any or the related trust agreements, insurance contracts, insurance policies or other documents increase the costs relating thereto. No trust funding any Plan is intended to meet the requirements of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit PlanCode Section 501(c)(9).
(bf) Neither the Company, None of Company and its Subsidiaries nor any of its Subsidiaries or their respective ERISA Affiliates has, at any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within time during the last six (6) years years, contributed to or been obligated to contribute to any plan that is (1i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Title IV or Section 302 of ERISA, ERISA or Section 412 or 4971 of the Code or Title IV of ERISA, (2ii) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 Multiemployer Plan”) or 4064 a plan that has two or more contributing sponsors at least two of ERISA).
(c) Each Company Benefit Plan has been maintainedwhom are not under common control, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 4063 of ERISA (a “Multiple Employer Plan”); and Section 4975 none of the Code Company and its Subsidiaries nor any of their respective ERISA Affiliates has occurred incurred any liability to a Multiemployer Plan or is reasonably expected to occur with respect to any Company Benefit 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 such Multiemployer Plan or Multiple Employer Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, Company nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its SubsidiariesSubsidiaries sponsors, (B) increase the amount has sponsored or value of has any benefit or compensation otherwise payable or required to be provided obligation with respect to any such directoremployee benefit plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, employee former or independent contractorcurrent employees or beneficiaries or dependents thereof, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of required by Section 280G 4980B of the Code. Company and each of its Subsidiaries have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or medical or life insurance coverage, and no representations or commitments, whether or not written, have been made that would limit Company’s or such Subsidiary’s right to amend, terminate or modify any such benefits.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement hereof, have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreementhereof, have been fully reflected on the consolidated financial statements books and records of Company.
(i) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) result in, cause the vesting, exercisability or delivery of, or increase in the amount or value of, any payment, right or other benefit to any employee, officer, director or other service provider of Company or any of its Subsidiaries, or result in any limitation on the right of Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust. Without limiting the generality of the Table of Contents foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by Company or any of its Subsidiaries in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code, or otherwise.
(j) There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability (as hereinafter defined) that would be a material liability of Company, its Subsidiaries or any of their ERISA Affiliates following the Closing. Without limiting the generality of the foregoing, neither Company nor any of its ERISA Affiliates has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA.
(k) None of Company and its Subsidiaries nor any of their respective ERISA Affiliates nor any Person now or previously employed by Company, including any fiduciary, has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the Company included Benefit Plans or their related trusts, Company, any of its Subsidiaries, any of their respective ERISA Affiliates or any Person that Company or any of its Subsidiaries has an obligation to indemnify with respect to such prohibited transaction, to any material tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA.
(l) There are no pending or, to Company’s Knowledge, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to Company’s Knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Company SEC ReportBenefit Plans, any non-institutional fiduciaries thereof with respect to their duties to the Company Benefits Plans or the assets of any of the trusts under any of the Company Benefit Plans which could reasonably be expected to result in any material liability of Company or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any Multiemployer Plan, a Multiple Employer Plan, any participant in a Company Benefit Plan, or any other party.
(m) Each individual who renders services to Company or any of its Subsidiaries who is classified by Company or such Subsidiary, as applicable, as having the status of an independent contractor or other non-employee status for any purpose (including for purposes of taxation and tax reporting and under Company Benefit Plans) is properly so characterized.
(n) No deduction of any amount payable pursuant to the terms of any Company Benefit Plan has been disallowed or is subject to disallowance under Section 162(m) of the Code.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 5.13(a) of the Company Disclosure Letter sets forth a true and complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA), ”) (whether or not subject to ERISA thereto), and (ii) other any material stock purchase, stock option, severance, employment, individual consulting, retirement, pension, retention, change-in-control, health, welfare, fringe benefit, collective bargaining, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacationincentive, deferred compensation, severance, termination, retention, change of control employee loan and other similar fringe, welfare or all other employee benefit planplans, programagreements, agreementprograms, contract, policy policies or binding arrangement other arrangements under which (whether or not in writingi) maintained or contributed to for the benefit of any current or former employee, individual Worker, officer, director or independent consultant or director contractor of the Company or any of its SubsidiariesSubsidiaries (the “Company Employees”) or any former employee, Worker, officer, director or with respect independent consultant or contractor of the Company or any of its Subsidiaries (the “Former Company Employees”) (or, in each case, any beneficiary or dependent thereof) has any present or future right to benefits and which are contributed to, sponsored by or maintained by the Company or any of its Subsidiaries or (ii) the Company or any of its Subsidiaries has or could reasonably be expected to have any current present or future Liability liability (the contingent or otherwise), other than any multiemployer pension plan (as defined in Section 3(37) of ERISA (whether or not subject thereto)) or any plan which is sponsored, administered or required to be maintained by a Governmental Authority (each, a “Company Benefit PlansPlan”). As of the date hereof, with .
(b) With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent complete and accurate SPAC or its agents or representatives copies of (Ai) each Company Benefit Plan and any trust agreement or other funding instrument relating to such plan, (ii) the most recent summary plan description with respect to such Company Benefit Plan (and any material and relevant communications with any Company Employees or Former Company Employees regarding each Company Benefit Plan), (iii) any material correspondence with relevant Governmental Authorities (including relevant tax and pensions authorities) relating to each Company Benefit Plan, (iv) the most recent annual report on Form 5500 filed and all attachments with respect to such Company Benefit Plan (if applicable), (v) the IRSmost recent actuarial valuation (if applicable) relating to such Company Benefit Plan, including all schedules thereto; (Bvi) the most recent determination letter from the IRS for or opinion letter, if any, issued by any relevant tax authority with respect to any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, administered in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within Laws and all contributions required to be made with respect to any Company Benefit Plan on or before the meaning date hereof have been made materially in compliance with applicable requirements and all material obligations in respect of Section 406 of ERISA and Section 4975 each Company Benefit Plan as of the Code has occurred date hereof have been accrued and reflected in the Company’s financial statements to the extent required by GAAP.
(d) Except as would not, individually or is in the aggregate, reasonably be expected to occur be material to the Company and its Subsidiaries, taken as a whole, with respect to any Company Benefit Plan.
, no event has occurred and no condition exists that would subject the Company or its Subsidiaries, either directly or by reason of their affiliation with any member of their “Controlled Group” (ddefined as any organization which is a member of a controlled group of organizations within the meaning of Sections 414(b), (c), (m) As or (o) of the date hereof, there are no Legal Proceedings pending orCode), to the Knowledge of the Companyany material tax, threatened on behalf of fine, lien, penalty or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefitsmaterial liability imposed by applicable Law.
(e) No Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company Benefit Plan provides for and its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries has incurred any current or projected liability in respect of post-employment or post-retirement health, medical or post-employment welfare life insurance benefits to former employees of the Companyfor Company Employees or Former Company Employees, other than except as may be required pursuant to Section 4980B of the Code or any similar applicable Law.
(f) Each Neither the Company Benefit Plan that is intended nor any of its Subsidiaries sponsored or was required to be “qualified” under contribute to, at any point since its date of formation, a multiemployer pension plan (as defined in Section 401 3(37) of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred ERISA (whether or is reasonably expected to cause the loss of such qualificationnot subject thereto)).
(g) Neither the execution or and delivery of this Agreement, Agreement by the Company nor the consummation of the Transactions Merger will (either whether alone or upon the occurrence of in connection with any additional or subsequent eventsevent(s)) (Ai) result in the acceleration, vesting or creation of any payment rights of any Company Employee to payments or benefit becoming due benefits or payable, increases in any payments or benefits or any loan forgiveness under any Company Benefit Plan or (ii) result in material severance pay or any material increase in severance pay upon any termination of employment of any Company Employee.
(h) Each Company Benefit Plan which is required to be providedregistered or intended to meet certain regulatory or other requirements for favorable tax treatment has been timely and properly registered and has been maintained in good standing with the applicable regulatory authorities and requirements, in each case, in all material respects. All Company Benefit Plans that are required to be funded are fully funded, and adequate reserves have been established with respect to any directorCompany Benefit Plan that is not required to be funded, employee except, in any case, as has not resulted or independent contractor would not result in a material liability to the Company and its Subsidiaries, taken as a whole.
(i) Schedule 5.13(i) sets forth a true and complete list of each share, share option or other equity-based incentive arrangement operated by the Company and the Company’s Subsidiaries and neither the Company, nor any of the Company’s Subsidiaries, has any other obligation in respect of, nor has made any other commitment to grant (in each case whether legally enforceable or not), shares, share options or other equity-based incentives to any person.
(j) There are no loans outstanding between the Company or any of its Subsidiariesthe Company’s Subsidiaries (as lender) and any Company Employee, (B) increase the amount Former Company Employee, or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result person that may become a Company Employee in the acceleration future (as borrower).
(k) There are no trusts or other arrangements in place, whether funded, established or settled by the Company or any of the time Company’s Subsidiaries under, pursuant to or otherwise in respect of paymentwhich, vesting any Company Employee, Former Company Employee, or funding of any person that may become a Company Employee in the future (or any persons connected or associated with such persons) may obtain a benefit or compensation or in any form.
(Dl) except Except as would not not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries Subsidiaries, taken as a whole, result the Company and each Company Subsidiary has complied in the payment of any amount that could, individually or in combination full with any other payment securities, regulatory and/or exchange control laws in each jurisdiction in which securities or benefit, constitute an “excess parachute payment” within a right in respect of securities has been granted by the meaning of Section 280G of the CodeCompany or any Company’s Subsidiary.
(hm) No person is entitled Company Employee based in the United Kingdom or in Ireland transferred to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries under the United Kingdom Transfer of Undertakings (Protection of Employment) Regulations 1981 or 2006 or equivalent Laws in Ireland (as applicable), and no Company Employee based in the United Kingdom or in Ireland was entitled to early retirement benefits under a result of the imposition of additional taxes under Section 4999 or Section 409A of the Codedefined benefit pension scheme prior to any such transfer.
(in) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of Neither the Company included nor any of its Subsidiaries has ever participated in the Company SEC Reporta defined benefit pension arrangement (or been connected or associated with an employer in relation to a defined benefit pension arrangement).
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a4.15(a) of the Company Disclosure Letter sets forth Schedule contains a complete and accurate correct list of each all material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA Company Benefit Plans. The Company and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or Subsidiaries have no material liability with respect to which any plan, policy program or Agreement of the Company or any type set forth on Section 4.15(a) of its Subsidiaries has any current or future Liability (the “Disclosure Schedule other than the Company Benefit Plans”). As The Company has made available via the data room to the Purchaser, with respect to all such material Company Benefit Plans true, complete and correct copies of the date hereoffollowing, to the extent applicable: all plan documents and amendments thereto; the most recent summary plan descriptions and any subsequent summaries of material modifications; Forms 5500 series as filed with the IRS for the three (3) most recent plan years for any Company Benefit Plan to which such reporting requirements apply and each trust agreement, insurance or group annuity contract and other documents relating to the funding or payment of benefits under any Company Benefit Plan; and any other documents, forms or other instruments reasonably requested by Purchaser.
(b) With respect to each Company Benefit Plan, whether or not required to be listed on Section 4.15(a) of the Disclosure Schedule: (i) each such Company Benefit Plan has been administered in compliance in all material respects with its terms and is in compliance in all material respects with the applicable provisions of ERISA, the Code and all other applicable Laws (including reporting and disclosure obligations and health care continuation coverage obligations pursuant to COBRA); (ii) there are no proceedings, investigations, claims or suits pending or, to the extent applicableCompany’s Knowledge, threatened by any Governmental Entity or by any participant or beneficiary (other than routine claims for benefits) against any of the Company Benefit Plans; and (iii) to the Company’s Knowledge no Person has made available breached any of the duties imposed upon “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA or entered into any non exempt “prohibited transactions” as such term is defined in ERISA or the Code, with respect to Parent complete and accurate copies of such Company Benefit Plan.
(Ac) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Each Company Benefit Plan that is intended to qualify under Section 401(a), Section 401(k), Section 401(m) or Section 4975(e)(7) of the Code has either (i) received a favorable determination letter from the IRS as to its qualified status or (ii) may rely upon a favorable prototype opinion letter from the IRS, and to the Company’s Knowledge, no fact or event has occurred that would adversely affect the qualified status of any such Company Benefit Plan or the exempt status of any such trust.
(d) Except as required by COBRA or similar Law, no Company Benefit Plan provides any post-termination medical, life insurance or other welfare-type benefits to any Person. No Company Benefit Plan is a voluntary employee benefit association under Section 501(a)(9) of the Code. Except as would give rise to no Liability to the Company, neither the Company nor any of its Subsidiaries (nor (within the past six (6) years) any member of their respective Controlled Groups) has ever maintained, sponsored, participated in or contributed to (or been required to contribute to) any (i) Employee Benefit Plan subject to the funding requirements of Section 412 of the Code or Section 302 or Title IV of ERISA,; (Cii) multiemployer plan (as defined in Section 3(37) of ERISA); (iii) “defined benefit plan” within the plan documents and summary plan descriptions, meaning of Section 3(35) of ERISA; or a written description (iv) “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the terms Code.
(e) The execution and performance of this Agreement will not (i) constitute a stated triggering event under any Company Benefit Plan that is not will result in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business payment (whether of severance pay or not incorporatedotherwise) which would be treated as a single employer with becoming due from the Company or any of its Subsidiaries under Section 414 to any current or former officer, employee, director or consultant (or dependents of such Persons), or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any current or former officer, employee, director or consultant (or dependents of such Persons) of the Code maintains Company or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable LawSubsidiaries. No nonexempt “prohibited transaction” within individual has a right to any gross up or indemnification from the meaning Company or any of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur its Subsidiaries with respect to any Company Benefit Plan.
(df) As of To the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or extent that any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for postconstitutes a “non-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or qualified deferred compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute paymentplan” within the meaning of Section 280G 409A of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from , such Company Benefit Plan complies and has complied in both form and operation with the Company or any requirements of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (Nordson Corp)
Company Benefit Plans. (a) Section 3.18(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with Schedule 3.15(a) sets forth a correct and complete list of each material Company Benefit Plan and separately identifies each Acquired Company Benefit Plan. With respect to each Acquired Company Benefit Plan, to the extent applicable, the Company Parent has made available to Parent Buyer accurate and complete and accurate copies of (A) copies, in all material respects, of, as applicable, the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the current plan documents and summary plan descriptions, (or a written description of the terms of any if such plan is not written) and all amendments thereto, as applicable. With respect to each Company Benefit Plan that is not in writing; (D) any related trust agreementsan Acquired Company Benefit Plan, insurance contractsParent has made available to Buyer the plan document for, insurance policies or other documents a summary of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any the material compliance issues in respect of any terms of, such Company Benefit Plan.
(b) Neither Except as set forth on Schedule 3.15(b) or as provided for in the Company, any of its Subsidiaries or any other trade or business Transition Services Agreement:
(whether or not incorporatedi) which would be treated as a single employer with the no Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) Benefit Plan is a “multiple employer plan” (as described in Section 413(c) of the Code) and no Company has, since October 16, 2023, contributed to, been required to contribute to, or otherwise has or within the last twelve (12) months had any Liability in connection with any “multiemployer pension plan” (as defined in Section 4063 Sections 3(37) or 4064 4001(a)(3) of ERISA).) or “multiple employer plan”;
(cii) Each no Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt is an “prohibited transactionemployee pension benefit plan” within the meaning of Section 406 3(2) of ERISA and that is subject to Title IV of ERISA or Section 4975 412 of the Code has occurred or otherwise is reasonably expected to occur a defined benefit pension plan, and the Companies have no direct or contingent liability with respect to any Company Benefit Plan.such plan;
(diii) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any each Acquired Company Benefit Plan has been established and administered in all material respects in accordance with respect to its terms and in compliance with applicable Laws, including, in the administration or operation case of such plansU.S. Benefit Plans, other than routine claims for benefits.ERISA and the Code;
(eiv) No no Company Benefit Plan provides for postis a (A) defined benefit provision within the meaning of Section 147.1(1) of the Tax Act (Canada), (B) registered pension plan within the meaning of Section 248(1) of the Tax Act (Canada), (C) salary deferral arrangement within the meaning of Section 248(1) of the Tax Act (Canada), (D) individual pension plan within the meaning of Section 8300(1) of the Income Tax Regulations (Canada), (E) multi-retirement employer plan within the meaning of Section 8500(1) of the Income Tax Regulations (Canada), or (F) designated plan within the meaning of Section 8515(1) of the Income Tax Regulations (Canada);
(v) the Companies have no obligation to provide post-employment welfare or retirement health or medical or life insurance benefits for any retired, former or current Workers, except as required to former employees of the Company, other than pursuant to avoid excise tax under Section 4980B of the Code or any similar as otherwise required by applicable Law.;
(fvi) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions transactions contemplated by this Agreement and the Ancillary Agreements will not (either whether alone or upon the occurrence of together with any additional or subsequent eventsother event) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its SubsidiariesWorker, (B) increase the amount any payment or value of any benefit or compensation otherwise payable or required to be paid or provided to any such director, employee or independent contractor, Worker (C) result in the an acceleration of the time of payment, funding or vesting or funding of any such benefit payments or compensation benefits to any Worker, or (D) except as would not be material give rise directly or indirectly to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an would be characterized as a “excess parachute payment” within the meaning of Section 280G of the Code.
(hvii) No person is entitled no Company has any obligation to receive gross-up or indemnify any additional payment (Worker with respect to any Tax, including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 409A, 457A or 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.or otherwise; and
(jviii) All contributions required there is no pending or, to be made to any Company Benefit Plan by applicable Lawthe Knowledge of Parent, any plan document or threatened Action (other contractual undertaking, and all premiums due or payable than a routine claim for benefits) with respect to insurance policies funding any Acquired Company Benefit Plan, for except where any period through such Action would not, individually or in the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreementaggregate, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Reporta Material Adverse Effect.
Appears in 1 contract
Samples: Purchase Agreement (NCR Voyix Corp)
Company Benefit Plans. (a) Section 3.18(a5.13(a) of the Company Disclosure Letter sets forth a true and complete and accurate list list, as of the date hereof, of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) (whether or not subject thereto) and any other plan, policy, program or agreement (including any insurance policy, pension arrangement, provident fund, education fund, disability insurance, any employment, bonus, incentive or deferred compensation, equity or equity-based compensation, severance, retention, supplemental retirement, change in control or similar plan, policy, program or agreement) providing compensation or other benefits to any current or former director, officer, individual consultant, worker or employee, which are maintained, sponsored or contributed to by the Group, or to which the Group is a party or has or may have any liability, and in each case, whether or not (i) subject to ERISA and the Laws of the United States, (ii) other employmentin writing or (iii) funded, individual consultingbut excluding in each case any statutory plan, bonusprogram or arrangement that is required under applicable law and maintained by any Governmental Authority (each, stock optiona “Company Benefit Plan”) and separately denotes with an asterisk each Non-U.S. Plan. The Company has delivered to SPAC, stock purchase to the extent applicable, true, complete and correct copies of (A) each Company Benefit Plan (or, if not written a written summary of its material terms), including all plan documents, trust agreements, insurance Contracts or other equity-basedfunding vehicles and all amendments thereto, benefit(B) the most recent summary plan descriptions, incentive compensationincluding any summary of material modifications, profit sharing(C) the three (3) most recent annual reports (Form 5500 series) filed with the IRS with respect to such Company Benefit Plan, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare (D) the most recent actuarial report or other employee benefit planfinancial statement relating to such Company Benefit Plan, programand (E) the most recent determination or opinion letter, agreementif any, contract, policy or binding arrangement issued by the IRS with respect to any Company Benefit Plan and any pending request for such a determination letter.
(whether or not in writingb) maintained or contributed to for the benefit of any current or former employee, individual consultant or director Except as set forth on Section 5.13(b) of the Company Disclosure Letter: as of the date hereof and during the three (3) years preceding the date of this Agreement, (i) each Company Benefit Plan has been operated and administered in material compliance with its terms and all applicable Laws, including ERISA and the Code; (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Company’s financial statements to the extent required by GAAP; (iii) each Company Benefit Plan, which is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to its qualification or may rely upon an opinion letter for a prototype plan and, to the knowledge of the Company, no fact or event has occurred that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan; (iv) to the knowledge of the Company, there has not been any “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code, other than a transaction that is exempt under a statutory or administrative exemption) with respect to any Company Benefit Plan; and (v) neither the Company nor, to the knowledge of the Company, any other “fiduciary” (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company Benefit Plan.
(c) No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other pension plan that is subject to Title IV of ERISA (“Title IV Plan”) and neither the Company nor any of its SubsidiariesERISA Affiliates has sponsored or contributed to, been required to contribute to, or with respect to which had any actual or contingent liability under, a Multiemployer Plan or Title IV Plan at any time within the previous three (3) years. Neither the Company or nor any of its Subsidiaries ERISA Affiliates has incurred any current or future Liability withdrawal liability under Section 4201 of ERISA that has not been fully satisfied.
(the “Company Benefit Plans”). As of the date hereof, with d) With respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there no actions, suits or claims (other than routine claims for benefits in the ordinary course) are no Legal Proceedings pending or, to the Knowledge knowledge of the Company, threatened on behalf of or against any Company Benefit Planthreatened, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect and to the administration knowledge of the Company, no facts or operation of circumstances exist that would reasonably be expected to give rise to any such plansactions, other than routine claims for benefitssuits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for post-retirement employees or post-employment welfare benefits to former employees of the CompanyGroup for periods extending beyond their retirement or other termination of service, other than pursuant to Section 4980B (i) coverage mandated by applicable Law, (ii) death benefits under any “pension plan,” or (iii) benefits the full cost of which is borne by the current or former employee (or his or her beneficiary). No condition exists that would prevent the Group from amending or terminating any Company Benefit Plan providing health or medical benefits in respect of any active employee of the Code or any similar LawGroup (other than in accordance with the applicable Company Benefit Plan).
(f) Each Except as set forth on Section 5.13(f) of the Company Disclosure Letter, the consummation of the Transactions and the FST Restructuring will not, either alone or in combination with another event (such as termination following the consummation of the Transactions and the FST Restructuring), (i) entitle any current or former employee, officer or other service provider of the Group to any severance pay or any other compensation or benefits payable or to be provided by the Group, except as expressly provided in this Agreement, or (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation or benefits (including in respect of Options) due any such employee, officer or other individual service provider by the Group, (iii) directly or indirectly cause the Group to transfer or set aside any assets to fund any material benefits under any Company Benefit Plan, (iv) otherwise give rise to any material liability under any Company Benefit Plan, or (v) limit or restrict the right to merge, materially amend, terminate or transfer the assets of any Company Benefit Plan that is intended to be at or following the consummation of the Transactions and the FST Restructuring. The consummation of the Transactions and the FST Restructuring will not, either alone or in combination with another event, result in any “qualifiedexcess parachute payment” under Section 401 280G of the Code has received to any current or former employee, officer or other individual service provider of the Group. No Company Benefit Plan provides for a favorable determination letter from Tax gross-up, make whole or similar payment with respect to the IRS to such effect and nothing has occurred Taxes imposed under Sections 409A or is reasonably expected to cause 4999 of the loss of such qualificationCode or otherwise.
(g) Neither With respect to each Company Benefit Plan subject to the execution or delivery Laws of this Agreementany jurisdiction outside the United States, nor the consummation as of the Transactions will date hereof (either alone i) all employer contributions to each such Company Benefit Plan required by Law or upon by the occurrence terms of any additional or subsequent eventssuch Company Benefit Plan have been made, (ii) (A) result in any payment or benefit becoming due or payable, or each such Company Benefit Plan required to be providedregistered has been registered and has been maintained in good standing with applicable regulatory authorities and, to any director, employee or independent contractor the knowledge of the Company, no event has occurred since the date of the most recent approval or application therefor relating to any such Company Benefit Plan that would reasonably be expected to adversely affect any such approval or any of its Subsidiariesgood standing, and (Biii) increase the amount or value of any benefit or compensation otherwise payable or each such Company Benefit Plan required to be provided to any such directorfully funded or fully insured, employee is fully funded or independent contractorfully insured, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up paymentback-service obligations, on an ongoing and termination or solvency basis (determined using reasonable actuarial assumptions) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) in compliance with applicable Laws. Each Company Benefit Plan that subject to the Laws of any jurisdiction outside the United States, which provides retirement benefits, is a “nonqualified deferred compensation defined contribution plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Business Combination Agreement (Chenghe Acquisition I Co.)
Company Benefit Plans. (a) Section 3.18(a) For purposes of this Agreement, the Company Disclosure Letter sets forth a complete and accurate list of term "COMPANY BENEFIT PLAN" -------------------- means each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether Employee Benefit Plan sponsored or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of by the Company or any of its Subsidiaries, Company Subsidiary or with respect to which the Company or any Company Subsidiary makes or has made, or has or has had an obligation to make, contributions at any time. Schedule 4.17 contains a true and complete list of its Subsidiaries has any current or future Liability (the “each -------------- Company Benefit Plans”)Plan sponsored, maintained, or contributed to by the Company or any Company Subsidiary within the last six calendar years. As Each Company Benefit Plan currently in effect ("CURRENT COMPANY BENEFIT PLAN") ---------------------------- is identified as a "current plan" on such schedule.
(b) For purposes of this Agreement, the date hereofterm "EMPLOYEE BENEFIT PLAN" --------------------- means, with respect to any Person, each plan, fund, program, agreement, or arrangement or scheme, including each plan, fund, program, agreement, or arrangement maintained under the Laws of a jurisdiction outside the United States of America, in each case, that is or was sponsored or maintained by such Person or to which such Person makes or has made, or has or has had an obligation to make, contributions providing for employee benefits or for the remuneration, direct or indirect, of the employees, former employees, directors, managers, officers, consultants, independent contractors, contingent workers, or leased employees of such Person or the dependents of any of them (whether written or oral), including (i) each deferred compensation, bonus, incentive compensation, pension, retirement, stock purchase, stock option, and other equity-based compensation plan, (ii) each "welfare plan" (within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), determined ----- without regard to whether such plan is subject to ERISA); (iii) each "pension plan" (within the meaning of ERISA Section 3(2), determined without regard to whether such plan is subject to ERISA); (iv) each severance plan or agreement, (v) each health, vacation, summer hours, supplemental unemployment benefit, hospitalization insurance, medical, dental, and legal plan, fund program, agreement or arrangement or arrangement ad, (vi) each other employee benefit plan, fund, program, agreement or arrangement.
(c) For purposes of this Agreement, the term "ERISA AFFILIATE PLAN" -------------------- means each Employee Benefit Plan sponsored or maintained or required to be sponsored or maintained at any time by any Person (whether incorporated or unincorporated), that together with the Company would be deemed a "single employer" within the meaning of Code Section 414 (an "ERISA AFFILIATE"), or --------------- to which such ERISA Affiliate makes or has made, or has or has had an obligation to make, contributions at any time.
(d) Except as set forth in Schedule 4.17, --------------
(i) With respect to each Current Company Benefit Plan, to the extent applicablePlan identified on Schedule 4.17, the Company has made available delivered to Parent the Purchaser true and ------------- complete and accurate copies of the plan documents and any amendments to the plan documents (A) or, in the event the plan is not written, a written description of such plan), any related trust or other funding vehicle, any reports or summaries required under ERISA or the Code for the most recent annual period for which such report on Form 5500 filed with the IRSor summary was required, including all schedules thereto; (B) and the most recent determination letter (or opinion letter, if applicable) received from the IRS for Internal Revenue Service with respect to each Current Company Benefit Plan intended to qualify under Code Section 401(a).
(ii) The Company's records accurately reflect the employment or service histories of the employees, independent contractors, contingent workers, and leased employees of the Company and each Company Subsidiary, including their respective hours of service, and all such records are maintained in a usable form.
(iii) No Company Benefit Plan or ERISA Affiliate Plan is or was subject to ERISA Title IV or Code Section 412, and no Company Benefit Plan or ERISA Affiliate Plan is or was a "multiemployer pension plan" (as defined in ERISA Sections 3(37) and 4001(a)(3)) or subject to ERISA Section 302.
(iv) No Current Company Benefit Plan or ERISA Affiliate Plan is a "multiple employer welfare arrangement" (as defined in ERISA Section 3(40)).
(v) Each Current Company Benefit Plan has been established, registered, qualified, invested, operated, and administered in all material respects in accordance with its terms and in compliance with ERISA, the Code, and all Applicable Benefit Laws. Neither the Company nor any Company Subsidiary has incurred, and, to the Knowledge of the Company, no fact exists that reasonably could be expected to result in any material liability to the Company or any Company Subsidiary with respect to any Current Company Benefit Plan or any ERISA Affiliate Plan, including any current liability, tax, penalty, or fee under ERISA, the Code, or any Applicable Benefit Law (other than to pay premiums, contributions, or benefits in the ordinary course).
(vi) To the Knowledge of the Company, no fact or circumstance exists that could adversely affect the tax-exempt status of a Current Company Benefit Plan that is intended to qualify under be tax-exempt. Each Current Company Benefit Plan intended to be "qualified" within the meaning of Code Section 401(a) of and the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any trusts maintained with respect to such Current Company Benefit Plan that is not in writing; (Dare intended to be exempt from taxation under Code Section 501(a) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any has received a favorable determination letter indicating that such Current Company Benefit PlanPlan is so qualified or is entitled to rely on an opinion letter issued to a prototype sponsor that the prototype plan is qualified.
(bvii) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or There is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf material complaint, claim (other than a routine claim for benefits), proceeding, examination, audit, investigation, or action of any kind in or against before any Governmental Entity with respect to any Current Company Benefit Plan, and, to the assets Knowledge of the Company, no state of facts that, after notice or lapse of time or both, reasonably could be expected to give rise to any such material claim, investigation, examination, audit, or other proceeding to affect the tax exempt status of any trust Company Benefit Plan required to be tax-exempt.
(viii) No Current Company Benefit Plan provides medical, surgical, hospitalization or death benefits (whether or not insured) for current or former employees, directors, officers, consultants, independent contractors, contingent workers, or leased employees (or any of their dependents, spouses, or beneficiaries) of the Company or any Company Subsidiary for periods extending beyond their retirement or other termination of service, other than (1) continuation coverage mandated by ERISA, the Code, or Applicable Benefit Law and only to the extent required under ERISA, the Code, or such Applicable Benefit Law, (2) death benefits under any qualified Current Company Benefit Plan, (3) deferred compensation reflected in the Financial Statements, or (4) insured benefits through the end of the month in which termination of employment occurs.
(ix) No insurance policy or any other contract or agreement affecting any Current Company Benefit Plan requires or permits a retroactive increase in premiums or payments due under such insurance policy, contract, or agreement.
(x) Neither the Company nor any Company Subsidiary or any of their respective agents has been in breach of any fiduciary obligation with respect to the administration of the Company Benefit Plan or the trusts or other funding media relating to such Company Benefit Plan.
(xi) The Company has reserved the right under the terms of each Current Company Benefit Plan to amend, revise, merge, or terminate such plan (or the Company's participation or any Company Subsidiary's participation in such plan) or transfer such Current Company Benefit Plan's assets to another arrangement, plan, or fund at any time exclusively by Company action.
(xii) The execution, delivery, and performance of, and consummation of the transactions contemplated by, this Agreement will not (A) entitle any current or former employee, director, officer, consultant, independent contractor, contingent worker, or leased employee (or any of their dependents, spouses, or beneficiaries) of the Company or any Company Subsidiary to severance pay or any other payment under a Current Company Benefit Plan, or (B) accelerate the plan sponsortime of payment or vesting, plan administrator or increase the amount of compensation due any fiduciary or any such individual under a Current Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefitsPlan.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(gxiii) Neither the execution or delivery of this AgreementCompany nor any Company Subsidiary has made any payments, nor the consummation of the Transactions will (either alone or upon the occurrence of is obligated to make any additional or subsequent events) (A) result in any payment or benefit becoming due or payablepayments, or required to be provided, is a party to any director, employee or independent contractor of agreement that under certain circumstances could obligate the Company or any of its Subsidiaries, (B) increase the amount or value of Company Subsidiary to make any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would payments that will not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning deductible for federal income tax purposes by reason of Section 280G of the Code.
(hxiv) No person is entitled to receive any additional payment (including any tax gross up payment) from Neither the Company nor any Company Subsidiary has any duty or obligation to indemnify or hold another Person harmless for any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 liability attributable to any acts or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects omissions by such Person with Section 409A of the Code.
(j) All contributions required to be made respect to any Company Benefit Plan or ERISA Affiliate Plan.
(e) Schedule 4.17(e) contains a complete a correct list of all Company ---------------- Options, including the number of shares covered by applicable Laweach Company Option, any plan document or other contractual undertakingthe exercise price of each Company Option and whether such Company Option is intended to qualify as incentive stock options as defined in Code Section 422.
(f) The Company has delivered to the Purchaser complete and accurate copies of the Company's Stock Option Plan and all forms of the Company Options, each as amended to the Agreement Date, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC ReportOptions have been issued pursuant to such forms.
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Company Benefit Plans. (a) Section 3.18(a3.19(a) of the Company Disclosure Letter sets forth Schedule contains a true, correct and complete and accurate list of each material Company Benefit Plan and ERISA Affiliate Plan.
(b) With respect to each Company Benefit Plan and ERISA Affiliate Plan identified in Section 3.19(a) of the Disclosure Schedule, the Company delivered or made available to Parent, to the extent in the Company’s possession, (i) “employee benefit plan” true, correct and complete copies of the plan document as currently in effect (as defined or, in Section 3(3) of ERISAthe event the plan is not written, a written description thereof), whether or not subject to ERISA and (ii) other employmentany related trust, individual consulting, bonus, stock option, stock purchase insurance contract or other equity-basedfunding vehicle, benefit(iii) the most recent summary plan description distributed to participants in each such Company Benefit Plan or ERISA Affiliate Plan (if applicable), incentive compensation(iv) the most recent determination, profit sharingopinion or advisory letter received from the IRS with respect to each current Company Benefit Plan or ERISA Affiliate Plan intended to qualify under Code Section 401 (if any), savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control (v) nondiscrimination and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to coverage tests for the benefit of any current most recent full plan year, (vi) the most recent annual report (Form 5500) filed with the IRS and financial statements (if applicable), and (vii) the recent actuarial report or former employee, individual consultant or director valuations (if applicable).
(c) The records of the Company accurately reflect in all material respects the employment or any service histories of its SubsidiariesEmployees, or with respect to which the Company or any independent contractors, contingent workers and leased employees, including their hours of its Subsidiaries has any current or future Liability service.
(the “Company Benefit Plans”). As of the date hereof, with d) With respect to each Company Benefit Plan, (i) to the extent applicable, the Company has made available to Parent complete and accurate copies Knowledge of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, there has not occurred any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt non-exempt “prohibited transaction” within the meaning of Section 4975(c) of the Code or Section 406 of ERISA and Section 4975 of that would subject the Code has occurred Company, its Subsidiaries or is reasonably expected to occur with respect Parent to any Company Benefit Plan.
material liability and (dii) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf no fiduciary (within the meaning of or against any Company Benefit Plan, the assets Section 3(21) of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or ERISA) of any Company Benefit Plan that is subject to Part 4 of Title I of ERISA has committed a breach of fiduciary duty that would subject the Company, its Subsidiaries or Parent to any material liability. No Company Benefit Plan or ERISA Affiliate Plan is or was subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, and no Company Benefit Plan or ERISA Affiliate Plan is or was a “multiemployer plan” (as defined in Section 3(37) of ERISA), nor has the Company or any of its ERISA Affiliates ever sponsored, maintained, contributed to, or had any liability or obligation with respect to the administration to, any such Company Benefit Plan or operation of such plans, other than routine claims for benefitsERISA Affiliate Plan.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees To the Knowledge of the Company, other than pursuant each Company Benefit Plan or ERISA Affiliate Plan has been established, operated and administered in all material respects in accordance with its terms and in compliance with all Applicable Benefit Laws. The Company has performed and complied in all material respects with all of its obligations under or with respect to Section 4980B of the Code or any similar LawCompany Benefit Plans.
(f) Each Company Benefit Plan or ERISA Affiliate Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code and the trusts maintained thereunder that are intended to be exempt from taxation under Section 401 501(a) of the Code has received a favorable determination determination, opinion or advisory letter from or has a request for such a letter pending with the IRS or has time remaining in which to file for such effect a letter, and to the Knowledge of the Company, nothing has occurred subsequent to the date of such favorable determination, opinion or is advisory letter that would reasonably be expected to cause adversely affect the loss qualified status of any such qualificationplan.
(g) Neither To the execution or delivery of this Agreement, nor the consummation Knowledge of the Transactions will Company, there is no pending or threatened (either alone i) complaint, claim, charge, suit, proceeding or upon the occurrence other action of any additional kind with respect to any Company Benefit Plan or subsequent eventsERISA Affiliate Plan (other than any routine claim for benefit, appeal of any such claim, or domestic relations order proceeding) or (ii) audit, inquiry, or investigation in or before any Governmental Authority with respect to any Company Benefit Plan or ERISA Affiliate Plan.
(h) Except as would not subject the Company or Parent to a material liability, all contributions and premium payments (including all employer contributions and employee salary reduction contributions) that are due from the Company with respect to each Company Benefit Plan have been made within the time periods prescribed by ERISA and the Code, and all contributions and premium payments for any period ending on or before the Closing Date that are an obligation of the Company and not yet due have either been made to such Company Benefit Plan, or have been accrued on the Company Financial Statements.
(i) With respect to each Company Benefit Plan that is an employee welfare benefit plan (within the meaning of Section 3(1) of ERISA), all claims incurred by the Company are (i) insured pursuant to a contract of insurance whereby the insurance company bears any risk of loss with respect to such claims, (ii) covered under a contract with a health maintenance organization (an “HMO”), pursuant to which the HMO bears the liability for claims, or (iii) reflected as a liability or accrued for on the Company Financial Statements. No Company Benefit Plan provides medical or life insurance benefits after an Employee’s termination of employment, and the Company does not have any liabilities with respect thereto other than (A) result in any payment or benefit becoming due or payableto the extent required by applicable Law, or required to be provided, to any director, employee or independent contractor including Section 4980B of the Company or Code and Part 6 of Title I of ERISA, and the regulations thereunder, and any of its Subsidiariesother Applicable Benefit Laws, (B) increase benefits through the amount or value end of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractorthe month of termination of employment, (C) result in the acceleration death benefits attributable to deaths occurring at or prior to termination of the time of paymentemployment, vesting or funding of any such benefit or compensation or (D) except as would benefits the full cost of which is borne by the current or former Employee (or the Employee’s beneficiary).
(j) The Transactions will not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually (either alone or in combination with any other event) in: (i) any payment of, or increase in, remuneration or benefits, to any Employee, officer, director or consultant of the Company; (ii) any cancellation of indebtedness owed to the Company by any Employee, officer, director or consultant of the Company; or (iii) the acceleration of the vesting, funding or time of any payment or benefitbenefit to any Employee, constitute an “excess parachute payment” within the meaning of Section 280G officer, director or consultant of the CodeCompany.
(hk) No person is entitled Except as required by the terms of this Agreement, the Company has not announced or entered into any plan or binding commitment to receive (i) create or cause to exist any additional payment Company Benefit Plan, or (including ii) adopt, amend or terminate any tax gross up payment) from Company Benefit Plan, other than any amendment required by Applicable Benefit Laws or necessary to conform a plan document to Applicable Benefit Laws. Each Company Benefit Plan may be amended or terminated in accordance with its terms without material liability to the Company or any of Company, its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the CodeParent.
(il) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) within the meaning of the Code) that is subject to Section 409A of the Code is and associated Treasury Department guidance either (A) has been operated in material compliance in all material respects with Code Section 409A since January 1, 2005, or (B) does not provide for the payment of any benefits that have or will be deferred or vested after December 31, 2004 and since October 3, 2004, has not been “materially modified” within the meaning of Section 409A of the CodeCode and associated Treasury Department guidance, including IRS Notice 2005-1, Q&A 18.
(jm) All contributions required The representations and warranties contained in this Section 3.19 constitute the sole and exclusive representations and warranties of the Company with respect to be made any matter relating to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
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Company Benefit Plans. (a) Section 3.18(a3.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “Schedule lists all employee benefit plan” plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), whether or not subject to ERISA ERISA, and (ii) other employment, individual consulting, all bonus, stock option, stock purchase or other equity-basedpurchase, benefitrestricted stock, incentive compensation, profit sharing, savings, retirement, disability, vacationincentive, deferred compensation, severanceretiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all retention, bonus, employment, termination, retention, change of control and other similar fringe, welfare severance or other employee benefit plancontracts or agreements to which Company or any Subsidiary or any of their respective ERISA Affiliates (as hereinafter defined) is a party, programcurrently maintains, agreement, contract, policy contributes to or binding arrangement (whether or not in writing) maintained or contributed to sponsors for the benefit of any current or former employee, individual consultant officer, director or director independent contractor of the Company or any Subsidiary or any of its Subsidiaries, their respective ERISA Affiliates or with respect to for which the Company or any of its Subsidiaries has Subsidiary could otherwise have any current or future Liability material liability or material obligations (all such plans, programs, arrangements, contracts or agreements, whether or not listed in Section 3.11(a) of the Company Disclosure Schedule, collectively, the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the .
(b) The Company has made available to Parent Purchaser true, correct and complete and accurate copies of the following (Aas applicable): (i) the written document evidencing each Company Benefit Plan or, with respect to any such plan that is not in writing, a written description of the material terms thereof, and all amendments, modifications or material supplements to any Company Benefit Plan, (ii) the annual report (Form 5500), if any, filed with the U.S. Internal Revenue Service (“IRS”) for the last two plan years, (iii) the most recently received IRS determination letter, if any, relating to a Company Benefit Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Company Benefit Plan, (v) the most recent annual report on Form 5500 filed summary plan description, if any, for such Company Benefit Plan (or other descriptions of such Company Benefit Plan provided to employees) and all modifications thereto, (vi) all material correspondence with the Department of Labor or the IRS, including all schedules thereto; (Bvii) the most recent determination letter from nondiscrimination tests performed under ERISA and the Code, (viii) all contracts with third-party administrators, compensation consultants and other service providers that related to a Company Benefit Plan, and (ix) any related trust agreements, insurance contracts or documents of any other funding arrangements relating to a Company Benefit Plan. Except as specifically provided in the foregoing documents delivered or made available to Purchaser, there are no amendments to any Company Benefit Plans that have been adopted or approved nor has Company or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Company Benefit Plans. No Company Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside of the United States.
(c) Except as Previously Disclosed, each Company Benefit Plan has been established, operated and administered in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code. During the six years preceding the date of this Agreement, neither Company nor any of its Subsidiaries has taken any action to take corrective action or make a filing under any voluntary correction program of the IRS, Department of Labor or any other Governmental Entity with respect to any Company Benefit Plan, and to the Company’s Knowledge no plan defect exists that would qualify for correction under any such program.
(d) Except as has been Previously Disclosed, each Company Benefit Plan that is a “nonqualified deferred compensation plan” as defined in Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) and any award thereunder, in each case that is subject to Section 409A of the Code, has since (i) January 1, 2005, been maintained and operated in good faith compliance with Section 409A of the Code and IRS Notice 2005-1, (ii) October 3, 2004, not been “materially modified” (within the meaning of Notice 2005-1) and (iii) December 31, 2008, been in documentary and operational compliance with a reasonable interpretation of Section 409A of the Code. No assets set aside for the payment of benefits under any Nonqualified Deferred Compensation Plan are held outside of the United States, except to the extent that substantially all of the services to which such benefits are attributable have been performed in the jurisdiction in which such assets are held.
(e) Section 3.11(e) of the Company Disclosure Schedule identifies each Company Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code; Code (C) the plan documents “Qualified Plans”). The IRS has issued a favorable determination letter with respect to each Qualified Plan and summary plan descriptionsthe related trust has not been revoked (nor has revocation been threatened), and to the Company’s Knowledge no circumstances or a written description of events have occurred that would reasonably be expected to adversely affect the terms qualified status of any Company Benefit Qualified Plan that is not in writing; (D) any or the related trust agreements, insurance contracts, insurance policies or other documents increase the costs relating thereto. No trust funding any Plan is intended to meet the requirements of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit PlanCode Section 501(c)(9).
(bf) Neither the Company, None of Company and its Subsidiaries nor any of its Subsidiaries or their respective ERISA Affiliates has, at any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within time during the last six (6) years years, contributed to or been obligated to contribute to any plan that is (1i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Title IV or Section 302 of ERISA, ERISA or Section 412 or 4971 of the Code or Title IV of ERISA, (2ii) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 Multiemployer Plan”) or 4064 a plan that has two or more contributing sponsors at least two of ERISA).
(c) Each Company Benefit Plan has been maintainedwhom are not under common control, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 4063 of ERISA (a “Multiple Employer Plan”); and Section 4975 none of the Code Company and its Subsidiaries nor any of their respective ERISA Affiliates has occurred incurred any liability to a Multiemployer Plan or is reasonably expected to occur with respect to any Company Benefit 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 such Multiemployer Plan or Multiple Employer Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Except as Previously Disclosed, Neither the execution or delivery of this Agreement, Company nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its SubsidiariesSubsidiaries sponsors, (B) increase the amount has sponsored or value of has any benefit or compensation otherwise payable or required to be provided obligation with respect to any such directoremployee benefit plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, employee former or independent contractorcurrent employees or beneficiaries or dependents thereof, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of required by Section 280G 4980B of the Code. Company and each of its Subsidiaries have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or medical or life insurance coverage, and no representations or commitments, whether or not written, have been made that would limit Company’s or such Subsidiary’s right to amend, terminate or modify any such benefits.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement hereof, have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreementhereof, have been fully reflected on the consolidated financial statements books and records of Company.
(i) Except as Previously Disclosed, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) result in, cause the vesting, exercisability or delivery of, or increase in the amount or value of, any payment, right or other benefit to any employee, officer, director or other service provider of Company or any of its Subsidiaries, or result in any limitation on the right of Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by Company or any of its Subsidiaries in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code, or otherwise.
(j) There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability (as hereinafter defined) that would be a material liability of Company, its Subsidiaries or any of their ERISA Affiliates following the Closing. Without limiting the generality of the foregoing, neither Company nor any of its ERISA Affiliates has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA.
(k) None of Company and its Subsidiaries nor any of their respective ERISA Affiliates nor any Person now or previously employed by Company, including any fiduciary, has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the Company included Benefit Plans or their related trusts, Company, any of its Subsidiaries, any of their respective ERISA Affiliates or any Person that 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.
(l) There are no pending or, to Company’s Knowledge, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to Company’s Knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Company SEC ReportBenefit Plans, any fiduciaries thereof with respect to their duties to the Company Benefits Plans or the assets of any of the trusts under any of the Company Benefit Plans which could reasonably be expected to result in any material liability of Company or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any Multiemployer Plan, a Multiple Employer Plan, any participant in a Company Benefit Plan, or any other party.
(m) Each individual who renders services to Company or any of its Subsidiaries who is classified by Company or such Subsidiary, as applicable, as having the status of an independent contractor or other non-employee status for any purpose (including for purposes of taxation and tax reporting and under Company Benefit Plans) is properly so characterized.
(n) No deduction of any amount payable pursuant to the terms of any Company Benefit Plan (other than Previously Disclosed incentive stock options granted pursuant to Section 422 of the Code) has been disallowed or is subject to disallowance under Section 162(m) of the Code.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSection 3.20(a) of the Company Disclosure Letter Schedules sets forth a true and complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, . With respect to the extent applicableeach material Company Benefit Plan, the Company has made available to Parent SPAC or its counsel a true, complete and correct copy, to the extent applicable, of (i) each document constituting a material part of such Company Benefit Plan (or a complete and accurate copies description of any unwritten Company Benefit Plan); (Aii) the most recent annual member booklet or summary plan description, including any summary of material modifications; (iii) the most recent actuarial report on or other financial report or statements relating to such Company Benefit Plan; (iv) any trust agreement (currently in effect) relating to such Company Benefit Plan; (v) Form 5500 and all schedules and attachments thereto filed with the IRS, including all schedules theretoInternal Revenue Service for the last two (2) completed plan years; (Bvi) the most recent determination letter from or pre-approved plan letter; (vii) nondiscrimination testing results for the IRS for last two (2) completed plan years and details of any corrections; (viii) any non-routine correspondence with any Governmental Authority within the past three (3) years concerning such Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangementsPlan; and (Eix) any written notices to or from any Governmental Authority relating to any material compliance issues in respect evidence of any registration of such Company Benefit Plan.
(b) Neither Each Company Benefit Plan has been established, administered, maintained, operated and funded in all material respects in accordance with its terms, and in all material respects in compliance with all applicable Laws. There are no pending or, to the knowledge of the Company, threatened actions, claims or lawsuits by any Person against or relating to the Company Benefit Plans (other than routine benefits claims), and there have been no such actions, claims or lawsuits for the last five (5) years. No Company Benefit Plan is presently, or for the last five (5) years has been, under audit or examination (nor has written notice been received of a potential investigation, audit or examination) by any Governmental Authority. No event has occurred and no condition exists that would reasonably be expected to subject any of its Subsidiaries the Group Companies to any material Tax, penalty or fine in connection with any other trade or business Company Benefit Plan.
(whether or not incorporatedc) which would be treated as a single employer with the No Company or any of its Subsidiaries under Section 414 Benefit Plan is, and none of the Code maintains or Group Companies has within the last six (6) years sponsored, established, maintained, contributed to or been required to contribute to, or in any way has any liability (1whether on account of an ERISA Affiliate or otherwise), directly or indirectly, with respect to any Company Benefit Plan that is, (i) an a plan other than one maintained primarily outside the United States, (ii) a “employee registered pension benefit plan”, a “deferred profit sharing plan”, a “registered retirement savings plan”, or a “retirement compensation arrangement” (as defined in subsection 248(1) of the Income Tax Act (Canada), (iii) single employer pension plan (within the meaning of Section 3(24001(a)(15) of ERISA), ) subject to Section 302 of ERISA, Section 412 of the Code or and/or Title IV of ERISA, (2iv) a “multiemployer plan” multi-employer pension plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA or ERISA, (3v) a “multiple employer plan” (within the meaning of Section 413 of the Code) or (vi) a “multiple employer welfare arrangement” (as defined in Section 4063 or 4064 3(40) of ERISA).
(cd) Each All contributions, premium payments and other amounts required to have been paid under or with respect to any Company Benefit Plan has have been maintainedtimely paid in accordance with the terms of such Company Benefit Plan except as would not result in material liability to the Group Companies.
(e) Except as set forth in Section 3.20(e) of the Company Disclosure Schedules, operated and administerednone of the Company Benefit Plans provide medical, in all material respectshealth, in compliance with its terms and with all life or other welfare benefits after the termination of a participant’s employment or engagement, as applicable, except as may be required by applicable Law. No nonexempt “prohibited transaction” within , at the meaning of Section 406 of ERISA and Section 4975 sole expense of the Code has occurred participant or is reasonably expected the participant’s beneficiary.
(f) Except for accelerated vesting of certain Company Options, Company RSUs and restricted Company Common Shares pursuant to occur the terms of the applicable grant agreements, and disclosed on Section 3.20(f) of the Company Disclosure Schedules, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) (i) result in any payment becoming due, or increase the amount of any compensation or benefits due, to any employee, director or individual independent contractor of any of the Group Companies or with respect to any Company Benefit Plan.
; (dii) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against increase any Company Benefit Plan, the assets of any trust benefits otherwise payable under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
; (e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (Ciii) result in the acceleration of the time of payment, payment or vesting or funding of any such benefit or compensation or benefits, or the forgiveness of indebtedness of any employee, director or individual independent contractor of any of the Group Companies; or (Div) except as would not be material to the Company and its Subsidiaries taken as a whole, result in an obligation to fund or otherwise set aside assets to secure to any extent any of the payment obligations under any Company Benefit Plan.
(g) Neither the execution of any amount that couldthis Agreement nor the consummation of the Transactions contemplated hereby, individually either alone or in combination conjunction with any other payment or benefitevent, constitute an in respect of any “excess parachute paymentdisqualified individual” within the meaning of Section 280G of the Code.
, could give rise to (hor already has resulted in) a payment or provision of any other benefit (including accelerated vesting) that, individually or collectively, would not be deductible by reason of Section 280G of the Code or would be subject to an excise Tax under Section 4999 of the Code. No person Person is entitled to receive any additional payment (including any tax gross Tax gross-up or other payment) from the Company or any of its Subsidiaries the Group Companies as a result of the imposition of additional taxes under the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(h) All Company Options and Company RSUs that are held by individuals who are U.S. taxpayers comply in all material respects with the applicable with the requirements of Section 409A of the Code and all regulations and other applicable guidance thereunder. Each Company Option was granted in accordance with the terms of the applicable Company Option Plan, and each Company Option granted to a U.S. taxpayer has been granted with an exercise price that is no less than the fair market value of the underlying Company Common Shares on the date of grant, as determined in accordance with Section 409A of the Code. Each Company RSU was granted in accordance with the terms of the applicable Company RSU Plan, and each Company RSU granted to a U.S. taxpayer complies or falls within an exception to Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in intended to be qualified under Section 409A(d)(1401(a) of the CodeCode or Section 401(k) that is subject to Section 409A of the Code is in compliance in has (i) timely received a favorable determination letter from the U.S. Internal Revenue Service (the “IRS”) covering all material respects with Section 409A of the Code.
(j) All contributions required provisions applicable to be made to any such plan for which determination letters are currently available that the Company Benefit Plan by applicable Law, any plan document is so qualified and each trust established in connection with such Company Benefit Plan is exempt from federal income taxation under Section 501(a) of the Code or other contractual undertaking(ii) is entitled to rely on a favorable opinion letter from the IRS, and all premiums due to the knowledge of the Company, no fact or payable with respect to insurance policies funding any Company Benefit Plan, for any period through event has occurred since the date of this Agreement have been timely made such determination or paid opinion letter or letters from the IRS that could reasonably be expected to result in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements loss of the qualified status of any such Company included in Benefit Plan or the Company SEC Reportexempt status of any such trust.
Appears in 1 contract
Samples: Business Combination Agreement (Bite Acquisition Corp.)
Company Benefit Plans. (a) Section 3.18(aSchedule 3.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material Company Benefit Plan and denotes with an asterisk each material Non-U.S. Plan; provided, however, that Section 3.11(a) of the Company Disclosure Letter need only contain a list and need not list (i) any agreement, arrangement, plan, policy or program maintained by or required to be maintained by a Governmental Entity, or (ii) any employment agreement, offer letter or consulting agreement for an employee or service provider who is not an officer of the Company, and with respect to any employment agreement, offer letter or consulting agreement with an officer the Company, the Company Disclosure Letter need not list such agreement with an officer with annual base compensation less than One Hundred Fifty Thousand Dollars ($150,000) or that does not provide material transaction, change in control (excluding the acceleration of any equity or equity-based awards) or severance benefits in excess of Five Hundred Thousand Dollars ($500,000) (other than those required by applicable law). “Company Benefit Plan” means each “employee benefit plan” (as defined in Section 3(3) of ERISA), whether and any other agreement, arrangement, plan, policy or not subject to ERISA and program (ii) other including any employment, individual consulting, bonus, stock optioncommission, stock purchase incentive or other deferred compensation, employee loan, note or pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, retirement, supplemental retirement, profit sharing, change of control and other in control, fringe benefits vacation, sick, insurance, pension (including pension funds, managers’ insurance or similar fringefunds, welfare education fund, medical, welfare, fringe or other employee benefit similar plan, policy, program, agreementagreement or other arrangement), contractmedical, policy welfare, fringe or binding arrangement (whether similar plan, policy, program, agreement or not in writingother arrangement) maintained providing compensation or contributed other benefits to for the benefit of any current or former employeedirector, officer, employee or other individual consultant service provider, which is maintained, sponsored or director contributed to by the Company or any of the Company Subsidiaries or under which the Company or any of the Company Subsidiaries has any obligation or liability; provided that no “multiemployer plan,” within the meaning of Section 3(37) or 4001(a)(3) of ERISA shall be a Company Benefit Plan hereunder. “Non-U.S. Plan” means any Company Benefit Plan maintained, sponsored or contributed to (or required to be contributed to) by the Company or any of its Subsidiaries, Subsidiaries or with respect pursuant to which the Company or any of its Subsidiaries has or may have any current or future Liability (the “Company Benefit Plans”). As liabilities outside of the date hereofUnited States primarily for the benefit of employees, with respect to each Company Benefit Plan, to consultants or individual independent contractors primarily working or engaged in a jurisdiction other than the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plansUnited States, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement any agreement, arrangement, plan, policy or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, program maintained by or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as maintained by a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the CodeGovernmental Entity.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (10X Capital Venture Acquisition Corp)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a an accurate and complete and accurate list list, as of the date of this Agreement, of each material Company Benefit Plan (i) other than any individual employment offer letters, individual employment Contracts, individual consulting agreements or individual Company Option, Company Restricted Stock Unit Award or Company Restricted Stock Award agreements, in each case, that are on substantially the forms set forth on Section 4.13(a)). For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA and any other plan, policy, practice, program, agreement or other arrangement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan agreement, equity or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, retirement, supplemental retirement, profit sharing, change of control and other in control, vacation, sick, insurance, medical, welfare, fringe or similar fringeplan, welfare or other employee benefit planpolicy, program, agreement, contract, policy agreement or binding arrangement (whether other arrangement) providing compensation or not in writing) maintained other benefits or contributed remuneration to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which is maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case, whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable Law and maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, complete and accurate correct copies of (A) the most recent annual report on Form 5500 filed with the IRSsuch Company Benefit Plan (or, including if not written a written summary of its material terms) and all schedules plan documents, related trust agreements, insurance Contracts or other funding vehicles and all amendments thereto; (B) the most recent determination letter from the IRS for summary plan description, including any Company Benefit Plan that is intended to qualify under Section 401(a) summary of the Codematerial modifications; (C) the plan documents and summary plan descriptionstwo (2) most recent annual reports (Form 5500 series) filed with the IRS with respect to such Company Benefit Plan; (D) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, (E) the most recent determination or a written description of opinion letter, if any, issued by the terms of IRS with respect to any Company Benefit Plan that is not in writing; (D) and any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangementspending request for such a determination letter; and (EF) any written notices all material correspondence to or from any Governmental Authority relating to any material compliance issues in respect the IRS, the United States Department of any such Company Labor, the Pension Benefit Plan.
(b) Neither the Company, any of its Subsidiaries Guaranty Corporation or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within Governmental Authority received in the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or three (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur years with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a3.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “Schedule lists all employee benefit plan” plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), whether or not subject to ERISA ERISA, and (ii) other employment, individual consulting, all bonus, stock option, stock purchase or other equity-basedpurchase, benefitrestricted stock, incentive compensation, profit sharing, savings, retirement, disability, vacationincentive, deferred compensation, severanceretiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all retention, bonus, employment, termination, retention, change of control and other similar fringe, welfare severance or other employee benefit plancontracts or agreements to which Company or any Subsidiary or any of their respective ERISA Affiliates (as hereinafter defined) is a party, programcurrently maintains, agreement, contract, policy contributes to or binding arrangement (whether or not in writing) maintained or contributed to sponsors for the benefit of any current or former employee, individual consultant officer, director or director independent contractor of the Company or any Subsidiary or any of its Subsidiaries, their respective ERISA Affiliates or with respect to for which the Company or any of its Subsidiaries has Subsidiary could otherwise have any current or future Liability material liability or material obligations (all such plans, programs, arrangements, contracts or agreements, whether or not listed in Section 3.11(a) of the Company Disclosure Schedule, collectively, the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the .
(b) Company has made available to Parent Purchaser true, correct and complete and accurate copies of the following (Aas applicable): (i) the written document evidencing each Company Benefit Plan or, with respect to any such plan that is not in writing, a written description of the material terms thereof, and all amendments, modifications or material supplements to any Company Benefit Plan, (ii) the annual report (Form 5500), if any, filed with the U.S. Internal Revenue Service (“IRS”) for the last two plan years, (iii) the most recently received IRS determination letter, if any, relating to a Company Benefit Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Company Benefit Plan, (v) the most recent annual report on Form 5500 filed summary plan description, if any, for such Company Benefit Plan (or other descriptions of such Company Benefit Plan provided to employees) and all modifications thereto, (vi) all material correspondence with the Department of Labor or the IRS, including all schedules thereto; (Bvii) the most recent determination letter from nondiscrimination tests performed under ERISA and the Code, (viii) all contracts with third-party administrators, compensation consultants and other service providers that related to a Company Benefit Plan, and (ix) any related trust agreements, insurance contracts or documents of any other funding arrangements relating to a Company Benefit Plan. Except as specifically provided in the foregoing documents delivered or made available to Purchaser, there are no amendments to any Company Benefit Plans that have been adopted or approved nor has Company or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Company Benefit Plans. No Company Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside of the United States.
(c) Except as Previously Disclosed, each Company Benefit Plan has been established, operated and administered in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code. During the six years preceding the date of this Agreement, neither Company nor any of its Subsidiaries has taken any action to take corrective action or make a filing under any voluntary correction program of the IRS, Department of Labor or any other Governmental Entity with respect to any Company Benefit Plan, and to Company’s Knowledge no plan defect exists that would qualify for correction under any such program.
(d) Except as has been Previously Disclosed, each Company Benefit Plan that is a “nonqualified deferred compensation plan” as defined in Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) and any award thereunder, in each case that is subject to Section 409A of the Code, has (i) been maintained and operated in good faith compliance with Section 409A of the Code and IRS Notice 2005-1, (ii) not been “materially modified” (within the meaning of Notice 2005-1), and (iii) been in documentary and operational compliance with a reasonable interpretation of Section 409A of the Code. No assets set aside for the payment of benefits under any Nonqualified Deferred Compensation Plan are held outside of the United States, except to the extent that substantially all of the services to which such benefits are attributable have been performed in the jurisdiction in which such assets are held.
(e) Section 3.11(e) of the Company Disclosure Schedule identifies each Company Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code; Code (C) the plan documents “Qualified Plans”). The IRS has issued a favorable determination letter with respect to each Qualified Plan and summary plan descriptionsthe related trust has not been revoked (nor has revocation been threatened), and to Company’s Knowledge no circumstances or a written description of events have occurred that would reasonably be expected to adversely affect the terms qualified status of any Company Benefit Qualified Plan that is not in writing; (D) any or the related trust agreements, insurance contracts, insurance policies or other documents increase the costs relating thereto. No trust funding any Plan is intended to meet the requirements of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit PlanCode Section 501(c)(9).
(bf) Neither the Company, None of Company and its Subsidiaries nor any of its Subsidiaries or their respective ERISA Affiliates has, at any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within time during the last six (6) years years, contributed to or been obligated to contribute to any plan that is (1i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Title IV or Section 302 of ERISA, ERISA or Section 412 or 4971 of the Code or Title IV of ERISA, (2ii) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 Multiemployer Plan”) or 4064 a plan that has two or more contributing sponsors at least two of ERISA).
(c) Each Company Benefit Plan has been maintainedwhom are not under common control, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 4063 of ERISA (a “Multiple Employer Plan”); and Section 4975 none of the Code Company and its Subsidiaries nor any of their respective ERISA Affiliates has occurred incurred any liability to a Multiemployer Plan or is reasonably expected to occur with respect to any Company Benefit 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 such Multiemployer Plan or Multiple Employer Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this AgreementExcept as Previously Disclosed, neither Company nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its SubsidiariesSubsidiaries sponsors, (B) increase the amount has sponsored or value of has any benefit or compensation otherwise payable or required to be provided obligation with respect to any such directoremployee benefit plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, employee former or independent contractorcurrent employees or beneficiaries or dependents thereof, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of required by Section 280G 4980B of the Code. Company and each of its Subsidiaries have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or medical or life insurance coverage, and no representations or commitments, whether or not written, have been made that would limit Company’s or such Subsidiary’s right to amend, terminate or modify any such benefits.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement hereof, have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreementhereof, have been fully reflected on the consolidated financial statements books and records of Company.
(i) Except as Previously Disclosed, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) result in, cause the vesting, exercisability or delivery of, or increase in the amount or value of, any payment, right or other benefit to any employee, officer, director or other service provider of Company or any of its Subsidiaries, or result in any limitation on the right of Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by Company or any of its Subsidiaries in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code, or otherwise.
(j) There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability (as hereinafter defined) that would be a material liability of Company, its Subsidiaries or any of their ERISA Affiliates following the Closing. Without limiting the generality of the foregoing, neither Company nor any of its ERISA Affiliates has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA.
(k) None of Company and its Subsidiaries nor any of their respective ERISA Affiliates nor any Person now or previously employed by Company, including any fiduciary, has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the Company included Benefit Plans or their related trusts, Company, any of its Subsidiaries, any of their respective ERISA Affiliates or any Person that 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.
(l) There are no pending or, to Company’s Knowledge, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to Company’s Knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Company SEC ReportBenefit Plans, any fiduciaries thereof with respect to their duties to the Company Benefits Plans or the assets of any of the trusts under any of the Company Benefit Plans which could reasonably be expected to result in any material liability of Company or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any Multiemployer Plan, a Multiple Employer Plan, any participant in a Company Benefit Plan, or any other party.
(m) Each individual who renders services to Company or any of its Subsidiaries who is classified by Company or such Subsidiary, as applicable, as having the status of an independent contractor or other non-employee status for any purpose (including for purposes of taxation and tax reporting and under Company Benefit Plans) is properly so characterized.
(n) No deduction of any amount payable pursuant to the terms of any Company Benefit Plan has been disallowed or is subject to disallowance under Section 162(m) of the Code.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 3.13(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material written (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other compensation, employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retentiontermination protection, change of control and other in control, transaction bonus, retention or similar fringe, welfare or other employee benefit plan, program, agreement, contractarrangement, program or policy and (iii) any other plan, policy or binding arrangement (whether program providing compensation or not in writing) maintained or contributed other benefits to for the benefit of any current or former employeedirector, individual consultant officer or director employee of the Company or any of its Subsidiaries and, in each case listed in the preceding clauses (i) through (iii), that is maintained, sponsored or contributed to by the Company or any of its Subsidiaries, or with respect to and under which the Company or any of its Subsidiaries has any current obligation or future Liability liability (the each a “Company Benefit PlansPlan”). As of the date hereof, with .
(b) With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent Acquiror correct and complete copies of, if applicable (i) such Company Benefit Plan and accurate copies of any trust agreement, (Aii) the most recent summary plan description, (iii) the most recent annual report on Form 5500 and all attachments thereto filed with the IRSInternal Revenue Service, including all schedules thereto; (Biv) the most recent actuarial valuation, and (v) the most recent determination or opinion letter from issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA)Internal Revenue Service.
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected Except for failures to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except comply as would not be material material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, result each Company Benefit Plan has been administered in accordance with its terms and all applicable Laws, including ERISA and the payment of any amount Code.
(d) Each Company Benefit Plan that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” is intended to be qualified within the meaning of Section 280G 401(a) of the CodeCode (i) has received a favorable determination or opinion letter as to its qualification, (ii) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (iii) has time remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter.
(he) No person Company Benefit Plan is entitled a multiemployer pension plan (as defined in Section (37) of ERISA) or other pension plan, in each case, that is subject to receive Title IV of ERISA.
(f) Except as would not be material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, with respect to each of the Company Benefit Plans, (i) no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the knowledge of the Company, threatened against the Company or any additional payment of its Subsidiaries, and (including ii) no facts or circumstances exist that would reasonably be expected to give rise to any tax gross up paymentsuch actions, suits or claims.
(g) from Except as disclosed on Schedule 3.13(g), neither the execution or delivery of this Agreement by the Company nor the consummation of the transactions contemplated by this Agreement will result in the acceleration or creation of any rights of any current or former director, officer or employee of the Company or any of its Subsidiaries to payments or benefits or increases in, or funding of, any payments or benefits or any loan forgiveness, in each case, from or by the Company or any of its Subsidiaries.
(h) Except as a result disclosed on Schedule 3.13(h), neither the Company nor any of its Subsidiaries has any current or projected liability for, and no Company Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any current or former employee of the imposition Company or any of additional taxes under Section 4999 or Section 409A its Subsidiaries (other than coverage mandated by applicable Law, including the Consolidated Omnibus Budget Reconciliation Act of the Code1985).
(i) Each Except as would not be material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, each Company Benefit Plan Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) within the meaning of the Code) that is subject to Section 409A of the Code is has been timely amended (if applicable) to comply and has been operated in compliance with, and the Company and its Subsidiaries have complied in practice and operation with, all material respects with applicable requirements of Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable LawNeither the execution, any plan document delivery or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date performance of this Agreement have been timely made nor the consummation of the transactions contemplated hereby will limit or paid in full in all material respects or, to restrict the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements right of the Company included in or its Subsidiaries or, after the Closing Date, Acquiror, to merge, amend or terminate any Company SEC ReportPlan.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 3.12(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA), ”) (whether or not subject to ERISA ERISA) and (ii) any other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit material plan, program, agreement, contract, policy or binding arrangement (whether program providing compensation or not in writing) maintained or contributed other benefits to for the benefit of any current or former employeedirector, individual consultant officer, employee or director of other service provider, which are maintained, sponsored or contributed to by the Company or any of its SubsidiariesAG LLC, or with respect to and under which the Company or any of its Subsidiaries AG LLC has any current material obligation or future Liability liability (the each a “Company Benefit PlansPlan”). As of the date hereof, with .
(b) With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent Acquiror or its agents or representatives true, correct and complete and accurate copies of (Ai) each Company Benefit Plan and any trust agreement relating to such plan or with respect to any Company Benefit Plan that is not in writing, a written description of the material terms thereof, (ii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required, (iii) the most recent annual report on Form 5500 and all attachments thereto filed with the IRSInternal Revenue Service with respect to such Company Benefit Plan (if applicable), including all schedules thereto; (Biv) the most recent actuarial valuation (if applicable) relating to such Company Benefit Plan, and (v) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended Internal Revenue Service with respect to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(bc) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the There is no Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) Benefit Plan that is a “multiemployer welfare benefit plan” within the meaning of Section 4001(a)(33(1) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan that provides for post-retirement retiree or post-employment welfare benefits to a current or former employees of the Companydirector, officer, employee or other service provider, other than (i) pursuant to Section 4980B of the Code or any similar Lawstate Law (“COBRA”), (ii) coverage through the end of the calendar month in which a termination of employment occurs or (iii) pursuant to an applicable employment agreement or severance agreement, plan or policy requiring the Company or AG LLC to pay or subsidize COBRA premiums for a terminated employee, (iv) coverage through the end of the calendar month in which a termination of employment occurs or (v) pursuant to an applicable employment agreement or severance agreement, plan or policy requiring the Company or AG LLC to pay or subsidize COBRA premiums for a terminated employee.
(d) Each Company Benefit Plan has been administered in accordance with its terms and materially complies in form and in operation in all respects with applicable Laws (including ERISA and the Code). Except as would not reasonably be expected to result in a material liability, all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Company’s financial statements to the extent required by GAAP.
(e) Each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code (i) has received a favorable determination or opinion letter as to its qualification, (ii) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (iii) has time remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter.
(f) Each At no time has the Company or any ERISA Affiliate contributed to, been obligated to contribute to, or otherwise sponsored or participated in (i) any multiemployer pension plan (as defined in Section 3(37) of ERISA and Section 414(f) of the Code); (ii) any multiple employer plan (within the meaning of Sections 4063 and 4064 of ERISA and Section 413(c) of the Code); (iii) a plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code or other pension plan, in each case, that is subject to Title IV of ERISA; or (iv) a Company Benefit Plan that is intended to be “qualified” under Section 401 for the benefit of service providers who perform services outside of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualificationUnited States.
(g) Neither There are no pending or, to the execution or delivery of this Agreement, nor the consummation knowledge of the Transactions will Company, threatened, material claims (either alone or upon the occurrence of other than routine claims for benefits) relating to any additional or subsequent events) (A) Company Benefit Plan. Except as would not reasonably be expected to result in any payment or benefit becoming due or payable, or required material liability to be provided, to any director, employee or independent contractor of the Company or any of its SubsidiariesAG LLC, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material with respect to the Company and its Subsidiaries taken as a wholeBenefit Plans, result no Actions (other than routine claims for benefits in the payment ordinary course) are pending or, to the knowledge of any amount that couldthe Company, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of threatened.
(h) Section 280G of the Code.
(h) No person Code does not apply to the Merger. There is entitled no written or unwritten agreement, plan, arrangement or other contractual obligation to receive any additional payment (including any tax gross up payment) from which the Company or AG LLC is a party or by which the Company or AG LLC is bound to compensate any of its Subsidiaries as a result of the imposition of additional taxes under Person for excise Taxes paid pursuant to Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined has been maintained and operated in Section 409A(d)(1) of the Code) that is subject to documentary and operational compliance with Section 409A of the Code or an available exemption therefrom, except as would not reasonably be expected to result in material liability to the Company or AG LLC. There is in compliance in all material respects with no written or unwritten agreement, plan, arrangement or other contractual obligation to which the Company or AG LLC is a party or by which the Company or AG LLC is bound to compensate any Person for additional Taxes payable pursuant to Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable LawExcept as set forth on Schedule 3.12(j), any plan document or other contractual undertaking, neither the execution and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date delivery of this Agreement have been timely made or paid in full in all material respects or, to by the extent not required to be made or paid on or before Company nor the date of this Agreement, have been fully reflected on the consolidated financial statements consummation of the Company included transactions contemplated by this Agreement will result in the Company SEC Reportacceleration or creation of any rights of any person to payments or benefits or increases in any payments or benefits or any loan forgiveness.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 4.13(a) of the Company Disclosure Letter sets forth a an accurate and complete and accurate list of each material (i) Company Benefit Plan as of the date hereof , but excluding any offer letter, employment agreement, consulting agreement, equity award agreement or other agreement which does not materially deviate from the applicable standard Company form and for which such form has been made available to Acquiror. “Company Benefit Plan” means any “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”), whether and any other plan, policy, program, arrangement or not subject agreement providing compensation or benefits to ERISA and (ii) any current or former director, officer, employee, independent contractor or other service provider, in each case, that is maintained, sponsored or contributed to by the Company or under which the Company has or could reasonably be expected to have any material obligation or liability, including, without limitation, all pension, retirement, employment, individual consulting, change in control, severance, retention, incentive, bonus, deferred compensation, vacation, holiday, cafeteria, medical, disability, stock purchase, stock option, stock purchase appreciation, phantom stock, restricted stock or other equitystock-basedbased compensation plans, benefitpolicies, incentive compensationprograms, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare practices or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”)arrangements. As of the date hereof, with With respect to each Company Benefit Plan, the Company has delivered or made available to Acquiror correct and complete copies (or to the extent no copy exists, an accurate summary) of, if applicable, (i) the Company has made available to Parent complete current plan document and accurate copies of any trust agreements, insurance contracts or other funding vehicles (Aii) the most recent summary plan description, (iii) the most recent annual report on Form 5500 filed with the IRSInternal Revenue Service (or, including all schedules thereto; with respect to non-U.S. plans, any comparable annual or periodic report), (Biv) the most recent actuarial valuation (v) the most recent determination or opinion letter from issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; Internal Revenue Service (C) the plan documents and summary plan descriptionsor applicable comparable Governmental Authority), or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (Evi) any written notices all material correspondence to or from any Governmental Authority relating to any material compliance issues received in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or three (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur years with respect to any Company Benefit Plan.
(d) As . The Company has also delivered or made available a written description of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included set forth in the Company SEC Reporta written document.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Graf Acquisition Corp. IV)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a an accurate and complete and accurate list list, as of the date hereof, of each material (i) Company Benefit Plan. For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) or any other plan, whether policy, practice, program, agreement or not subject to ERISA and other arrangement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, retirement, supplemental retirement, profit sharing, change of control and other in control, vacation, sick, insurance, medical, welfare, fringe or similar fringeplan, welfare or other employee benefit planpolicy, program, agreement, contract, policy agreement or binding arrangement (whether other arrangement) providing compensation or not in writing) maintained other benefits or contributed remuneration to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable Law and maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, complete and accurate correct copies of (A) the most recent annual report on Form 5500 filed with the IRSsuch Company Benefit Plan (or, including if not written a written summary of its material terms) and all schedules plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto; , (B) the most recent determination letter from summary plan descriptions, including any summary of material modifications (C) the three (3) most recent annual reports (Form 5500 series) filed with the IRS for with respect to such Company Benefit Plan, (D) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, (E) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or any pending request for such a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; determination letter and (EF) any written notices all material correspondence to or from any Governmental Authority relating to any material compliance issues in respect the IRS, the United States Department of any such Company Labor (“DOL”), the Pension Benefit Plan.
(b) Neither the Company, any of its Subsidiaries Guaranty Corporation or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within Governmental Authority received in the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or three (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur years with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a3.16(a) of the Company Disclosure Letter sets forth Schedules contains a true, correct and complete and accurate list of each material Company Benefit Plan. With respect to each material Company Benefit Plan, the Company has provided Parent with true, correct and complete copies of the following documents, to the extent applicable: (i) the current plan document and any related trust documents, and amendments thereto; (ii) the three (3) most recent annual returns (Forms 5500 and schedules thereto) and the most recent actuarial report, if any; (iii) the most recent IRS determination, opinion or advisory letter; (iv) the most recent summary plan description and any material modifications thereto; (v) any related insurance Contracts; and (vi) all material non-routine correspondence with any Governmental Entity relating to a Company Benefit Plan dated within the past three (3) years.
(b) Except as set forth on Section 3.16(b) of the Company Disclosure Schedules:
(i) No Company Benefit Plan is, and no benefit plan the Company sponsors, maintains, contributes to, or is required to contribute to or has any liability or obligation with respect to (including on account of an ERISA Affiliate) is a: (A) “employee multiemployer plan” (as defined in Sections 3(37) or 4001(a)(3) of ERISA), or (B) “defined benefit plan” (as defined in Section 3(33(35) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade plan that is or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), was subject to Section 302 Title IV of ERISA, ERISA or Section 412 of the Code or Title IV of ERISA, Code;
(2ii) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or No Company Benefit Plan is (3A) a “multiple employer plan” described in Section 413(c) of the Code, or (B) “multiple employer welfare arrangement” (as defined in Section 4063 or 4064 3(40) of ERISA).;
(ciii) The Company does not have any current or contingent obligation or liability ERISA or the Code in relation to any employee benefit plan by reason of being considered a single employer under Section 414 of the Code with any other Person;
(iv) Each Company Benefit Plan (and related trust, insurance Contract or fund) has been established, funded, maintained, and operated and administered, administered in all material respects, respects in compliance accordance with its terms and in compliance with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of Laws (including ERISA and Section 4975 of the Code has occurred Code), and all contributions, premiums, reimbursements, distributions or is reasonably expected payments required to occur be made with respect to any Company Benefit Plan.
(d) As Plan for all periods ending prior to or as of the date hereofhereof have been timely made, there are no Legal Proceedings or, to the extent not yet due, have been made, paid, or properly accrued to the extent required under GAAP;
(v) No claim or Action is pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or with respect to any Company Benefit Plan with respect to the administration or operation of such plans, (other than routine claims for benefits.benefits payable in the Ordinary Course);
(evi) Each Company Benefit Plan that is or was intended to be “qualified” within the meaning of Section 401(a) of the Code has received a current favorable determination letter from the U.S. Internal Revenue Service (the “IRS”), or is entitled to rely upon a favorable opinion letter from the IRS for a master or prototype plan, and, to the Knowledge of the Company, nothing has occurred which would reasonably be expected to adversely affect the qualification of such Company Benefit Plan;
(vii) No Company Benefit Plan provides for post-retirement employment or post-employment welfare termination medical, health, or life insurance or any other welfare-type benefits to any current or former employees employee, officer, director or individual service provider of the Company, other than pursuant to except as required by COBRA for which the covered individual pays the full cost of coverage; or
(viii) There have been no “prohibited transactions” within the meaning of Section 4980B 4975 of the Code or Sections 406 or 407 of ERISA and not otherwise exempt under Section 408 of ERISA with respect to any similar LawCompany Benefit Plans and no breaches of fiduciary duty (as determined under ERISA) have occurred with respect to any Company Benefit Plan.
(fc) Each With respect to each Company Benefit Plan that is subject to the applicable Law of a jurisdiction outside of the United States (whether or not United States Law also applies) or that is primarily for the benefit of employees, directors, officers or individual service providers of the Company who reside or work primarily outside of the United States (each a “Non-U.S. Plan”): (i) each Non-U.S. Plan required to be registered or intended to be “qualified” under Section 401 meet certain regulatory requirements for favorable tax treatment has been timely and properly registered and has been maintained in good standing with the applicable regulatory authorities and requirements in all material respects; (ii) no Non-U.S. Plan is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA), seniority premium, termination indemnity, provident fund, gratuity or similar plan or arrangement; and (iii) all Non-U.S. Plans that are required by applicable Law or the terms of the Code has received a favorable determination letter from the IRS applicable Non-U.S. Plans to such effect be funded do not have any unfunded or underfunded liabilities not accurately accrued in accordance with applicable Laws and nothing has occurred or is reasonably expected to cause the loss of such qualificationaccounting standards.
(gd) Neither the execution or and delivery of this Agreement, Agreement nor the consummation of the Transactions will (either alone or upon the occurrence of in conjunction with any additional or subsequent eventsother event) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, will result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(he) No person is entitled Except as set forth on Section 3.16(e) of the Company Disclosure Schedules, neither the execution and delivery of this Agreement nor the consummation of the Transactions (either alone or in conjunction with any other event), other than pursuant to receive any additional arrangement or agreement entered into with Parent in connection with this Agreement, will, directly or indirectly, (i) result in any compensation or benefits becoming payable or due to any employee, officer, director or independent contractor (current or former) of the Company, (ii) increase any compensation or benefits otherwise payable or provided under any Company Benefit Plan to any employee, officer, director or independent contractor (current or former) of the Company, (iii) result in the acceleration of the time of payment or time of provision, funding or vesting of any such compensation, benefits, or other rights under any such Company Benefit Plan to any employee, officer, director or independent contractor (including any tax gross up paymentcurrent or former) from of the Company or (iv) result in an obligation to fund or otherwise set aside assets to secure to any extent any of its Subsidiaries as a result of the imposition of additional taxes obligations under Section any Company Benefit Plan.
(f) The Company does not have an obligation to gross-up or reimburse any individual for any Tax or related interest or penalties incurred by such individual, including under Sections 409A or 4999 or Section 409A of the Code.
(ig) Each Company Benefit Plan that is constitutes in any part a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the CodeCode and applicable IRS guidance thereunder.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (Power & Digital Infrastructure Acquisition II Corp.)
Company Benefit Plans. (a1) Section 3.18(a) of the The Company Disclosure Letter sets forth has Previously Disclosed a complete and accurate list of each material (i) “all employee benefit plan” (as defined in Section 3(3) of ERISA)plans, whether or not subject to ERISA and (ii) other employmentprograms, individual consultingagreements, bonuspolicies, stock optionpractices, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed arrangements providing benefits to for the benefit of any current or former employee, individual consultant officer or director of the Company or any of its Subsidiaries, Company Subsidiary or with respect any beneficiary or dependent thereof that is sponsored or maintained by the Company or any Company Subsidiary or to which the Company or any Company Subsidiary contributes or is obligated to contribute or is party, whether or not written, including any employee welfare benefit plan within the meaning of its Subsidiaries has any current or future Liability Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (the “Company Benefit PlansERISA”). As , any employee pension benefit plan within the meaning of the date hereofSection 3(2) of ERISA (whether or not such plan is subject to ERISA) and any bonus, with incentive, deferred compensation, vacation, stock purchase, stock option, severance, employment, change of control, consulting or fringe benefit plan, program, agreement or policy (“Benefit Plan”).
(2) With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent the Investor a true, correct and complete and accurate copies of copy of: (A) the most recent annual report on Form 5500 filed with the IRSeach writing constituting a part of such Benefit Plan, including all schedules theretoagreements, plan documents, employee communications, benefit schedules, trust agreements, and insurance contracts and other funding vehicles; and (B) the most recent determination letter from the IRS for IRS, if any. Except as specifically provided in the foregoing documents delivered or made available to the Investor, there are no amendments to any Company Benefit Plan that is intended to qualify under Section 401(a) of have been adopted or approved nor has the Code; (C) the plan documents and summary plan descriptions, Company or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices Subsidiary undertaken to or from any Governmental Authority relating to any material compliance issues in respect of make any such Company amendments or to adopt or approve any new Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each The Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Previously Disclosed each Benefit Plan that is intended to be a “qualifiedqualified plan” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g“Qualified Plans”) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”). The Internal Revenue Service has issued a favorable determination letter with respect to each Qualified Plan and the related trust that has not been revoked, and there are no circumstances and no events have occurred that could adversely affect the qualified status of any Qualified Plan or the related trust. No Benefit Plan is intended to meet the requirements of Code Section 501(c)(9).
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j4) All contributions required to be made to any Company Benefit Plan by applicable Law, law or regulation or by any plan document or other contractual undertakingdocument, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement the Original Agreement, have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this the Original Agreement, have been fully reflected in the financial statements.
(5) With respect to each Benefit Plan, the Company and the Company Subsidiaries have complied, and are now in compliance, in all material respects, with all provisions of ERISA, the Code and all laws and regulations applicable to such Benefit Plan. Each Benefit Plan has been administered in all material respects in accordance with its terms. There is not now, nor do any circumstances exist that are likely to give rise to, any requirement for the posting of security with respect to a Benefit Plan or the imposition of any lien on the consolidated financial statements assets of the Company included or any Company Subsidiary under ERISA or the Code. Each Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since December 24, 2004, based upon a good faith, reasonable interpretation of the applicable Department of the Treasury guidance. All stock options to purchase shares of Common Stock have been granted in compliance with the terms of the applicable Benefit Plans, with applicable law, and with the applicable provisions of the Company’s governing organization documents as in effect at the applicable time, and all such stock options are accurately disclosed as required under applicable law in (x) the Company’s filings with the SEC, including the financial statements contained therein or attached thereto (if amended or superseded by a filing with the SEC made prior to the date of the Original Agreement, as so amended or superseded), and (y) the Tax returns of the Company. In addition, the Company has not issued any stock options or any other similar equity awards pertaining to shares of Common Stock under any Benefit Plan with an exercise price that is less than the “fair market value” of the underlying shares of Common Stock on the date of grant, as determined for financial accounting purposes under generally accepted accounting principles applied on a consistent basis.
(6) With respect to each Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (B) the fair market value of the assets of such Benefit Plan equals or exceeds the actuarial present value of all accrued benefits under such Benefit Plan (whether or not vested), based upon the actuarial assumptions used to prepare the most recent actuarial report for such Benefit Plan; (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the consummation of the transactions contemplated by the Original Agreement will not result in the occurrence of any such reportable event; (D) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full; (E) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by the Company SEC Reportor any Company Subsidiary; and (F) the PBGC has not instituted proceedings to terminate any such Benefit Plan and, to the Company’s knowledge, no condition exists that would reasonably be expected to result in such proceedings being instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Benefit Plan.
(7) No Benefit Plan is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA (a “Multiemployer Plan”) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a “Multiple Employer Plan”). None of the Company and the Company Subsidiaries nor any entity, trade or business, whether or not incorporated, which together with the Company and the Company Subsidiaries would be deemed a “single employer” within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an “ERISA Affiliate”) has, at any time during the last six years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan. None of the Company and the Company Subsidiaries nor any of their respective ERISA Affiliates has incurred any withdrawal liability as a result of a complete or partial withdrawal from a Multiemployer Plan, as those terms are defined in Part I of Subtitle E of Title IV of ERISA, that has not been satisfied in full.
(8) There does not now exist, nor do any circumstances exist that would reasonably be expected to result in any liability (A) under Title IV or Section 302 of ERISA, (B) under Sections 412 and 4971 of the Code and (C) as a result of a material failure to comply with the continuation coverage, requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, that would be a liability of the Company and any Company Subsidiary or any of their respective ERISA Affiliates, other than such liabilities that have been Previously Disclosed. Without limiting the generality of the foregoing, neither the Company nor any Company Subsidiary, nor any of their respective ERISA Affiliates, has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA.
(9) The Company and the Company Subsidiaries have no liability for life, health, medical or other welfare benefits to 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 and at no expense to the Company and the Company Subsidiaries. The Company and each Company Subsidiary have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage.
(10) Neither the execution and delivery of the Original Agreement, nor the consummation of the transactions contemplated hereby will (A) result in any material payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former employee, officer or director of the Company or any Company Subsidiary from the Company or any Company Subsidiary under any Benefit Plan or otherwise, (B) materially increase any benefits otherwise payable under any Benefit Plan, (C) result in any acceleration of the time of payment or vesting of any such benefits, (D) require the funding or increase in the funding of any such benefits or (E) result in any limitation on the right of the Company or any Company Subsidiary to amend, merge, terminate or receive a reversion of assets from any Benefit Plan or related trust. Neither the Company nor any Company Subsidiary has taken, or permitted to be taken, any action that required, and no circumstances exist that will require the funding, or increase in the funding, of any benefits or resulted, or will result, in any limitation on the right of the Company or any Company Subsidiary to amend, merge, terminate or receive a reversion of assets from any Benefit Plan or related trust.
(11) None of the Company and the Company 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 could subject the Company, any Company Subsidiary or any person that the Company or any Company Subsidiary has an obligation to indemnify, to any material Tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA.
(12) There are no pending or threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to the Company’s knowledge, no set of circumstances exists which would reasonably be expected to give rise to a claim or lawsuit, against the Benefit Plans, any fiduciaries thereof with respect to their duties to the Benefit Plans or the assets of any of the trusts under any of the Benefit Plans which could reasonably be expected to result in any material liability of the Company or any Company Subsidiary.
Appears in 1 contract
Samples: Investment Agreement (Mbia Inc)
Company Benefit Plans. (a) Section 3.18(aSchedule 4.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit Benefit Plan of any current or former employee, individual consultant or director of the Group Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the each a “Company Benefit PlansPlan”). As of the date hereof, with .
(b) With respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent SPAC accurate and complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRScopies, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) if applicable, of the Code; (C) the current plan documents and summary plan descriptions, or a written description of the terms descriptions of any material Company Benefit Plan that is Plans which are not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any all material compliance issues communications in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or past three (3) years with any Governmental Entity concerning any matter that is still pending or for which a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA)Group Company has any outstanding material Liability.
(c) Each With respect to each Company Benefit Plan: (i) such Company Benefit Plan has been maintained, operated administered and administered, enforced in all material respects, respects in compliance accordance with its terms and the requirements of all Applicable Law, and has been maintained, where required, in good standing in all material respects with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA competent public authorities and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to Governmental Entities and any Company Benefit Planother third party involved (e.g. insurance companies etc.
); (dii) As of the date hereof, there are no Legal Proceedings Proceeding that would result in a material Liability to the Group Companies is pending or, to the Knowledge of the CompanyGroup Companies, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, (other than routine claims for benefitsbenefits arising in the ordinary course of administration); and (iii) all contributions, premiums and other payments required to be made with respect to a Company Benefit Plan have been timely made.
(ed) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees Except as set forth in Schedule 4.11(d) of the CompanyCompany Disclosure Letter, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect authorization, execution and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor or the consummation of the Transactions will not: (either alone i) entitle any individual to severance pay, unemployment compensation, bonus or upon other benefits or compensation under any Company Benefit Plan or under any Applicable Law; (ii) accelerate the occurrence time of payment or vesting, or materially increase the amount of, any compensation or benefits in respect of any additional current or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any former director, employee or independent contractor of a Group Company; (iii) directly or indirectly cause the Company to transfer or set aside any of its Subsidiaries, assets to fund any material benefits under any Company Benefit Plan; or (Biv) increase the amount or value of any benefit or compensation otherwise payable or required to be provided give rise to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of material liability under any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” Plan; (as defined in Section 409A(d)(1v) limit or restrict the right to merge, materially amend, terminate or transfer the assets of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before following the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC ReportEffective Time.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 3.17(a) contains a list, as of the Company Disclosure Letter sets forth a complete and accurate list date hereof, of each material (i) “all employee benefit plan” plans (as defined in Section 3(3) of ERISA)) and all bonus, stock option, stock purchase, restricted stock, cash or equity incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, whether or not subject to ERISA and ERISA, that are (iii) other employmentsponsored, individual consultingmaintained, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of by the Company or any of its SubsidiariesSubsidiaries or ERISA Affiliates for the benefit of current or former Internal Employees, or with respect to which the Company or any of its Subsidiaries has or ERISA Affiliates have or in the past six (6) years had any liability (collectively “Internal Employee Company Benefit Plans”) and (ii) sponsored or maintained by the Company or any of its Subsidiaries or ERISA Affiliates for the benefit of current or future Liability former Worksite Employees (together with the Internal Employee Company Benefit Plans, the “Company Benefit Plans”). Schedule 3.17(a) identifies whether each Company Benefit Plan provides benefits to Internal Employees, Worksite Employees, or both.
(b) As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate Buyer copies of the following (Aas applicable): (i) the plan document for each Company Benefit Plan or, with respect to any material Company Benefit Plan that is not written, a description of the material terms thereof; (ii) the most recent annual report on (Form 5500 filed with the IRS5500), including all schedules theretoif any; (Biii) the most recent recently received Internal Revenue Service (the “IRS”) determination letter from or opinion letter on which the sponsor of the Company Benefit Plan may rely in accordance with the IRS guidance, if any, relating to each Company Benefit Plan; (iv) the most recently prepared actuarial report or financial statement(s), if any, for the past three (3) years relating to each Company Benefit Plan; (v) copies of any material written correspondence with the Department of Labor or the IRS relating to any Company Benefit Plan; (vi) all material amendments, summary plan descriptions, and modifications or supplements to any Company Benefit Plan; (vii) all summary plan descriptions and summaries of material modifications to any Company Benefit Plan for which such summaries are required to be 37 furnished to participants and beneficiaries thereof; and (viii) copies of all funding and insurance agreements relating to any Company Benefit Plan.
(c) Each Company Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code; (C) Code has received a favorable determination letter from the IRS or such plan documents and summary plan descriptions, is in the form of a prototype or volume submitter document that has received a written description favorable opinion or advisory letter from the IRS on which the sponsor of the terms of any Company Benefit Plan may rely in accordance with the IRS guidance, and, there are no existing circumstances that is not would reasonably be expected to result in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents a loss of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect the qualified status of any such Company Benefit Plan.
(bd) Neither Each Company Benefit Plan is in compliance with its terms and applicable Laws, including ERISA, the CompanyCode and HIPAA, as applicable. The Oasis Retirement Savings Plan, the Aureon 401(k) Savings Plan, and the Staff One, Inc. 401(k) Plan have at all times been properly designed and operated as multiple employer 401(k) plans.
(i) None of the Group Companies or any ERISA Affiliate maintains, contributes to, or is obligated to contribute to, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) plan that is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA (a “Multiemployer Plan”), and (ii) none of the Group Companies has incurred any liability in the past six (6) years to a Multiemployer Plan, including with respect to an ERISA Affiliate, as a result of a complete or partial withdrawal from such Multiemployer Plan, as those terms are defined in Part I of Subtitle E of Title IV of ERISA.
(f) None of the Company Benefit Plans are, and neither the Company nor its Subsidiaries nor any ERISA Affiliate maintains, sponsors, contributes to or has an obligation to contribute to or has in the past six (6) years maintained, sponsored, contributed to or had an obligation to contribute to, (i) a plan subject to Title IV or Section 302 of ERISA or Sections 412 or 4971 of the Code, or (3ii) a “multiple employer planvoluntary employees’ beneficiary association” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 501(c)(i) of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualificationCode).
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) Code that is subject to Section 409A of the Code is has at all times been maintained and administered in material compliance in all material respects with Section 409A of the Code and the regulations and other guidance issued thereunder. None of the Group Companies has any indemnity or tax gross-up obligation for any Taxes or interest imposed or accelerated under Section 409A of the Code.
(jh) All contributions None of the Company Benefit Plans provide for any post-termination medical, life insurance or other welfare benefits for terminated or retired employees or their beneficiaries, except as required pursuant to be made Section 4980B of the Code, Part 6 of Subtitle B of Title I of ERISA or other applicable Law.
(i) There are no pending or, to the Company’s Knowledge, threatened Actions with respect to the Company Benefit Plans (other than routine claims for benefits in the ordinary course), no Company Benefit Plan is presently under audit or examination (nor has notice been received of a potential audit or examination) by any Governmental Entity 38 and no matters are pending with respect to any Company Benefit Plan by applicable Lawunder the IRS’ Employee Plans Compliance Resolution System, any plan document the U.S. Department of Labor’s Voluntary Fiduciary Correction Program, or other contractual undertakingsimilar programs; and to the Company’s Knowledge, and all premiums due no circumstances exist that could reasonably give rise to any claim (other than a routine claim for benefits), or payable other Action against the Company or any of its Subsidiaries or ERISA Affiliates with respect to insurance policies funding any Company Benefit Plan.
(j) With respect to each Company Benefit Plan that is subject to ERISA, no Person holds (or has ever held) any fiduciary office who would be prohibited from doing so under Section 411 of ERISA and there has not occurred any (i) non-exempt “prohibited transaction” (within the meaning of Section 4795 of the Code) or transaction prohibited by Section 406 or 407 of ERISA, or (ii) breach of any fiduciary duty described in Section 404 or 405 of ERISA, that would, with respect to either of clauses (i) and (ii), result in any material liability for the Group Companies or any period through ERISA Affiliate, or any officer, director, consultant or employee of the date Group Companies or any ERISA Affiliate.
(k) Timely payment has been made of this Agreement have been timely made or paid in full in all material respects or, amounts that the Company and each ERISA Affiliate is required to pay as contributions to the extent not required to be made or paid on or Company Benefit Plans as of the last day of the most recent fiscal year of each such plan ended before the date of this Agreement, ; all benefits accrued under any unfunded Company Benefit Plan will have been fully reflected on timely paid, accrued, or otherwise adequately reserved in accordance with GAAP in the consolidated financial statements of the Company included or a Subsidiary, as applicable; all premiums and other payments or contributions that are required to be paid to each Company Benefit Plan as of the Closing Date have been timely paid; and all monies withheld from employee paychecks with respect to each Company Benefit Plan have been transferred to the appropriate plan or funding vehicle within the time period required under applicable Laws.
(l) The Group Companies and all ERISA Affiliates are in compliance with all applicable requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and all regulations thereunder (together, the “ACA”), as well as any similar provisions of state or local Law, including all requirements relating to eligibility waiting periods and the offer of or provision of minimum essential coverage that is compliant with Section 36B(c)(2)(C) of the Code and the regulations issued thereunder to full-time employees as defined in Section 4980H(c)(4) of the Code and the regulations issued thereunder. No material excise tax or penalty under the ACA, including Sections 4980D and 4980H of the Code, is outstanding, has accrued, has arisen or could reasonably be expected to arise with respect to any period prior to the Closing, with respect to the Company, any ERISA Affiliate or any Company Benefit Plan. Neither the Company nor any ERISA Affiliate has any unsatisfied obligations to any employees or qualified beneficiaries pursuant to the ACA, or any state or local Law governing health care coverage or benefits, that would result in any liability to the Company or any ERISA Affiliate. The Company and each Subsidiary and ERISA Affiliate has maintained all records necessary to demonstrate compliance with the ACA and any other similar state or local Law, and has timely and properly completed required ACA reporting under Sections 6055 and 6056 of the Code. 39
(m) Except as disclosed on Schedule 3.17(m), neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in or accelerate the time of vesting of, or increase in the amount or value of, any benefit under any Company SEC ReportBenefit Plan to any current or former employee, officer or director of the Company or any of its Subsidiaries or (ii) be the direct or indirect cause of any amount paid or payable under any Company Benefit Plan being classified as an excess parachute payment under Section 280G of the Code, as determined without regard to any payments or employment, compensation, equity or other arrangements entered into or substantially negotiated by Buyer.
(n) With respect to all Company Benefit Plans, the Company, its Subsidiaries and ERISA Affiliates have properly classified all common law employees as employees and not independent contractors.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a5.13(a) of the Company Disclosure Letter sets forth a true and complete and accurate list list, as of the date hereof, of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) (whether or not subject thereto) and any other plan, policy, program or agreement (including any insurance policy, pension arrangement, provident fund, education fund, disability insurance, any employment, bonus, incentive or deferred compensation, equity or equity-based compensation, severance, retention, supplemental retirement, change in control or similar plan, policy, program or agreement) providing compensation or other benefits to any current or former director, officer, individual consultant, worker or employee, which are maintained, sponsored or contributed to by the Group, or to which the Group is a party or has or may have any liability, and in each case, whether or not (i) subject to ERISA and the Laws of the United States, (ii) other employmentin writing or (iii) funded, individual consultingbut excluding in each case any statutory plan, bonusprogram or arrangement that is required under applicable law and maintained by any Governmental Authority (each, stock optiona “Company Benefit Plan”) and separately denotes with an asterisk each Non-U.S. Plan. The Company has delivered to SPAC, stock purchase to the extent applicable, true, complete and correct copies of (A) each Company Benefit Plan (or, if not written a written summary of its material terms), including all plan documents, trust agreements, insurance Contracts or other equity-basedfunding vehicles and all amendments thereto, benefitto the extent applicable; and (B) the most recent summary plan descriptions, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change including any summary of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement material modifications.
(whether or not in writingb) maintained or contributed to for the benefit of any current or former employee, individual consultant or director Except as set forth on Section 5.13(b) of the Company Disclosure Letter: (i) each Company Benefit Plan has been operated and administered in material compliance with its terms and all applicable Laws; (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Company’s financial statements to the extent required by GAAP; and (iii) the Company is not in breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company Benefit Plan.
(c) No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other pension plan that is subject to Title IV of ERISA (“Title IV Plan”) and neither the Company nor any of its SubsidiariesERISA Affiliates has sponsored or contributed to, been required to contribute to, or with respect to which had any actual or contingent liability under, a Multiemployer Plan or Title IV Plan at any time within the previous six (6) years. Neither the Company or nor any of its Subsidiaries ERISA Affiliates has incurred any current or future Liability withdrawal liability under Section 4201 of ERISA that has not been fully satisfied.
(the “Company Benefit Plans”). As of the date hereof, with d) With respect to each Company Benefit Plan, to no actions, suits or claims (other than routine claims for benefits in the extent applicable, the Company has made available to Parent complete and accurate copies of (Aordinary course) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge knowledge of the Company, threatened on behalf of or against any Company Benefit Planthreatened, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect and to the administration knowledge of the Company, no facts or operation of circumstances exist that would reasonably be expected to give rise to any such plansactions, other than routine claims for benefitssuits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for post-retirement employees or post-employment welfare benefits to former employees of the CompanyGroup for periods extending beyond their retirement or other termination of service, other than pursuant to Section 4980B (i) coverage mandated by applicable Law, (ii) death benefits under any “pension plan,” or (iii) benefits the full cost of which is borne by the current or former employee (or his or her beneficiary). No condition exists that would prevent the Group from amending or terminating any Company Benefit Plan providing health or medical benefits in respect of any active employee of the Code or any similar LawGroup (other than in accordance with the applicable Company Benefit Plan).
(f) Each Except as set forth on Section 5.13(f) of the Company Disclosure Letter, the consummation of the Transactions and the TCO Restructuring will not, either alone or in combination with another event (such as termination following the consummation of the Transactions and the TCO Restructuring), (i) entitle any current or former employee, officer or other service provider of the Group to any severance pay or any other compensation or benefits payable or to be provided by the Group, except as expressly provided in this Agreement, or (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation or benefits (including in respect of Options) due any such employee, officer or other individual service provider by the Group, (iii) directly or indirectly cause the Group to transfer or set aside any assets to fund any material benefits under any Company Benefit Plan, (iv) otherwise give rise to any material liability under any Company Benefit Plan, or (v) limit or restrict the right to merge, materially amend, terminate or transfer the assets of any Company Benefit Plan that is intended to be at or following the consummation of the Transactions and the TCO Restructuring. The consummation of the Transactions and the TCO Restructuring will not, either alone or in combination with another event, result in any “qualifiedexcess parachute payment” under Section 401 280G of the Code has received to any current or former employee, officer or other individual service provider of the Group. No Company Benefit Plan provides for a favorable determination letter from Tax gross-up, make whole or similar payment with respect to the IRS to such effect and nothing has occurred Taxes imposed under Sections 409A or is reasonably expected to cause 4999 of the loss of such qualificationCode or otherwise.
(g) Neither With respect to each Company Benefit Plan subject to the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence Laws of any additional jurisdiction outside the United States, (i) all employer contributions to each such Company Benefit Plan required by Law or subsequent eventsby the terms of such Company Benefit Plan have been made, (ii) (A) result in any payment or benefit becoming due or payable, or each such Company Benefit Plan required to be providedregistered has been registered and has been maintained in good standing with applicable regulatory authorities and, to any director, employee or independent contractor the knowledge of the Company, no event has occurred since the date of the most recent approval or application therefor relating to any such Company Benefit Plan that would reasonably be expected to adversely affect any such approval or any of its Subsidiariesgood standing, and (Biii) increase the amount or value of any benefit or compensation otherwise payable or each such Company Benefit Plan required to be provided to any such directorfully funded or fully insured, employee is fully funded or independent contractorfully insured, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up paymentback-service obligations, on an ongoing and termination or solvency basis (determined using reasonable actuarial assumptions) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) in compliance with applicable Laws. Each Company Benefit Plan that subject to the Laws of any jurisdiction outside the United States, which provides retirement benefits, is a “nonqualified deferred compensation defined contribution plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Business Combination Agreement (Chenghe Acquisition Co.)
Company Benefit Plans. (a) Section 3.18(a3.17(a) of the Company Disclosure Letter sets forth Schedules contains a true, correct and complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”)Plan. As of the date hereof, with With respect to each Company Benefit Plan, the Companies have provided Parent true, correct and complete copies of the following documents, to the extent applicable: (i) the current plan document and any related trust documents, and amendments thereto; (ii) the Company has made available to Parent complete three most recent annual returns (Forms 5500 and accurate copies of schedules thereto) and the most recent actuarial report, if any; (Aiii) the most recent annual report on Form 5500 filed with the IRSIRS determination, including all schedules theretoopinion or advisory letter; (Biv) the most recent determination letter from the IRS for summary plan description and any Company Benefit Plan that is intended to qualify under Section 401(a) of the Codematerial modifications thereto; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (Dv) any related trust agreements, insurance contracts, insurance policies contracts or other documents of any funding arrangements; and (Evi) any written notices to or from all material non-routine correspondence with any Governmental Authority Entity relating to a Company Benefit Plan dated since the Look-Back Date. No Group Company has any material compliance issues in respect of plan or commitment to adopt or enter into any such additional Company Benefit Plan or to amend or terminate any existing Company Benefit Plan. No Group Company has sponsored, maintained, contributed to, or has been required to sponsor, maintain, participate in or contribute to, any employee benefit plan, program, or other arrangement providing compensation or benefits to any employee, officer, director or independent contractor (current or former) of the Group Companies (or any dependent thereof) which is subject to the Laws of any jurisdiction outside of the United States.
(b) Neither Except as set forth on Section 3.17(b) of the CompanyCompany Disclosure Schedules:
(i) No Company Benefit Plan is, and no Group Company (including any ERISA Affiliate thereof) contributes to, or is required to contribute to or has any liability with respect to a “multiemployer plan” (as defined in Sections 3(37) or 4001(a)(3) of its Subsidiaries ERISA), a “multiple employer plan” described in Section 413(c) of the Code, or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), and no Group Company has any other trade current or business (whether contingent obligation or not incorporated) which would be treated as liability in connection with any such “multiemployer plan” or “multiple employer plan,” including by reason of at any time being considered a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains with any other Person;
(ii) No Company Benefit Plan is, and no Group Company (including any ERISA Affiliate thereof) contributes to, is required to contribute to or has within the last six (6) years contributed any actual or contingent liability or obligations under or with respect to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), a plan that is or was subject to Section 302 or Title IV of ERISA, ERISA or Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).Code;
(ciii) Each Company Benefit Plan and related trust has been established, funded, maintained, operated and administered, administered in all material respects, respects in compliance accordance with its terms and in compliance with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of Laws (including ERISA and Section 4975 of the Code has occurred Code), and all contributions, premiums, reimbursements, distributions or is reasonably expected payments required to occur be made with respect to any Company Benefit Plan.
(d) As Plan for all periods ending prior to or as of the date hereofhereof have been timely made, there are no Legal Proceedings or, to the extent not yet due, have been made, paid, or properly accrued to the extent required under GAAP;
(iv) No liability, claim, Action, audit, investigation or litigation is pending or, to the Knowledge of the CompanyCompanies, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or with respect to any Company Benefit Plan with respect to the administration or operation of such plans, (other than routine claims for benefits.benefits payable in the Ordinary Course and appeals of denial of such claims);
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(fv) Each Company Benefit Plan that is intended to be “qualified” under within the meaning of Section 401 401(a) of the Code has received a favorable determination letter from the U.S. Internal Revenue Service (the “IRS”), or may rely upon a favorable opinion letter from the IRS for a master or prototype plan, and, to such effect and nothing the Knowledge of the Companies, no event has occurred or is and no condition exists which would reasonably be expected to cause adversely affect the loss qualification of such qualificationCompany Benefit Plan;
(vi) No Group Company has incurred nor have any events occurred that would reasonably be expected to result in the imposition of any penalty or Tax under Sections 4980D, 4980H, 6721 or 6722 of the Code with respect to any Company Benefit Plan or any failure by the Companies to comply with all applicable requirements under the Patient Protection and Affordable Care Act, and no Company Benefit Plan provides for post-employment or post-termination medical, health, or life insurance or any other welfare-type benefits to any current or former employee, officer or director of any Group Company, except as required by COBRA for which the covered person pays the cost of coverage as required under COBRA or as otherwise mandated by applicable Law;
(vii) No Group Company has filed an application under the IRS Employee Plans Compliance Resolution System or the Department of Labor’s Voluntary Fiduciary Correction Program with respect to any Company Benefit Plan since the Look-Back Date with respect to which current or contingent liability to a Group Company remains.
(gc) Neither the execution or and delivery of this Agreement, Agreement nor the consummation of the Transactions will transactions contemplated hereby (either alone or upon the occurrence of in conjunction with any additional or subsequent eventsother event) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, could result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(hd) No person is entitled to receive Except as set forth on Section 3.17(d) of the Company Disclosure Schedules, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any additional other event), other than any arrangement or agreement entered into with Parent in connection with this Agreement, will, directly or indirectly, (A) result in any payment (including whether in cash, property or the vesting of property), benefit or other right becoming due to any tax gross up employee, officer, director or independent contractor (current or former) of the Group Companies, (B) increase any compensation or benefits otherwise payable under any Company Benefit Plan or otherwise, (C) result in the acceleration of the time of payment, funding or vesting of any such compensation, benefits, or other rights under any such Company Benefit Plan or otherwise, or (D) from the Company result in an obligation to fund or otherwise set aside assets to secure to any extent any of its Subsidiaries as a result of the imposition of additional taxes obligations under Section 4999 or Section 409A of the Codeany Company Benefit Plan.
(ie) No Group Company has an obligation to gross-up or reimburse any individual for any Tax or related interest or penalties incurred by such individual, including under Sections 409A or 4999 of the Code or otherwise.
(f) Each Company Benefit Plan that is constitutes in any part a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the CodeCode and applicable IRS guidance thereunder.
(jg) All contributions required to be made To the Knowledge of the Companies, there has not been any “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code, other than a transaction that is exempt under a statutory or administrative exemption) with respect to any Company Benefit Plan by applicable LawPlan.
(h) Neither of the Companies nor, to the Knowledge of the Companies, any plan document other “fiduciary” (as defined in Section 3(21) of ERISA) has any material liability for breach of fiduciary duty or any other contractual undertaking, and all premiums due failure to act or payable comply in connection with respect to insurance policies funding the administration or investment of the assets of any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (ai) Set forth on Section 3.18(a3(v) of the Company Disclosure Letter sets forth is a complete and accurate correct list of each material (iA) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) all Benefit Plans that are presently maintained or contributed to for the benefit of any current or former employee, individual consultant or director of by the Company or any of its Subsidiaries, Subsidiary or with respect to which the Company or any of its Subsidiaries Subsidiary has any current or future Liability (the “Company Benefit Plans”). As of the date hereofmaterial liability, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan all “employee pension benefit plans” (as defined in ERISA §3(2)) that is intended have been maintained or contributed to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed by the Company or any Subsidiary and (C) all plans presently maintained in a jurisdiction other than the U.S. which relate to (1) an pension or retirement benefits provided to employees that would be “employee pension benefit plans” (as defined in ERISA §3(2)) if such plans were subject to ERISA that have been maintained or contributed to in the last six (6) years by the Company or any Subsidiary, in each case (A), (B) or (C) which provide benefits to any current or former director, officer, employee or service provider of the Company or any Subsidiary, or the dependents of any thereof (each plan in this clause (i), a “Plan,” and collectively, the “Plans”).
(ii) Neither the Company nor any ERISA Affiliate contributes to, has, or in the last six (6) years has had, any obligation to contribute to, or has any material liability under or with respect to any Employee Pension Benefit Plan that is a “defined benefit plan” (as defined in Section 3(2) of ERISAERISA §3(35), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(ciii) Each Neither the Company Benefit Plan nor any ERISA Affiliate contributes to, or has been maintainedany obligation to contribute to, operated and administered, or has any material liability (including withdrawal liability as defined in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred §4201) under or is reasonably expected to occur with respect to any Company Benefit Multiemployer Plan.
(div) As Except as set forth on Section 3(v) of the date hereofDisclosure Letter, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(eA) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither neither the execution or and delivery of this Agreement, nor the consummation of the Transactions transactions contemplated hereby will (either alone or upon the occurrence of any additional or subsequent events) (A1) result in any payment or benefit becoming due or payable(including severance, or required to be providedunemployment compensation, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” (within the meaning of Section 280G of the Code.
(h), forgiveness of indebtedness or otherwise) No person is entitled becoming due to receive any additional payment (including current or former employee, officer or director of the Company or any tax gross up payment) of its Subsidiaries from the Company or any of its Subsidiaries as a under any Plan or otherwise, (2) increase any benefits otherwise payable under any Plan, (3) result in any acceleration of the imposition time of additional taxes under Section 4999 payment or Section 409A vesting of any such benefits, (4) require the funding or increase in the funding of any such benefits or (5) result in any limitation on the right of the CodeCompany or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Plan or related trust and (B) neither the Company nor any of its Subsidiaries has taken, or permitted to be taken, any action that required, and no circumstances exist that will require the funding, or increase in the funding, of any benefits or resulted, or will result, in any limitation on the right of the Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Plan or related trust.
(iv) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable LawNo action, any plan document suit, proceeding, hearing or other contractual undertaking, and all premiums due or payable investigation with respect to insurance policies funding any Company Benefit Plan, Plan or the administration or the investment of the assets thereof (other than routine claims for any period through the date of this Agreement have been timely made or paid in full in all material respects benefits) is pending or, to the extent not required to be made best Knowledge of the Company, threatened; the Company has no Knowledge of any basis for any such action, suit, proceeding, hearing, or paid on or before investigation. Except for the date of this Agreement, have been fully reflected on the consolidated financial statements representations and warranties of the Company included expressly set forth in this Section 3(v), the Company SEC Reportmakes no other express or implied representation or warranty with respect to the Plans, or the matters covered by the representations and warranties contained in this Section 3(v), and none of the other representations and warranties contained in this Agreement shall be deemed to be given in relation to the Plans.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a3.10(a) of the Company Disclosure Letter sets forth a true and complete and accurate list of each material (i) “employee benefit plan,” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether and each and every written, unwritten, formal or not subject to ERISA informal material plan, agreement, program, policy or other arrangement involving direct or indirect compensation (other than workers’ compensation, unemployment compensation and (ii) other government programs), employment, individual severance, consulting, bonusdisability benefits, stock optionsupplemental unemployment benefits, stock purchase or other equity-basedvacation benefits, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacationretirement benefits, deferred compensation, severanceprofit-sharing, terminationbonuses, retentionstock options, change stock appreciation rights, other forms of control and other similar fringeincentive compensation, welfare post-retirement insurance benefits, or other employee benefit planbenefits, programentered into, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of by the Company or any of its Subsidiaries, Company Subsidiary or with respect to which the Company or any of its Subsidiaries Company Subsidiary has or may in the future have any current liability (contingent or future Liability (otherwise). Each plan, agreement, program, policy or arrangement required to be set forth on the Company Disclosure Letter pursuant to the foregoing is referred to herein as a “Company Benefit PlansPlan.”). As of
(b) The Company has delivered the date hereof, following documents to Parent with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent : (1) correct and complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRSall documents embodying such Company Benefit Plan, including (without limitation) all schedules amendments thereto; , and all related trust documents, (B2) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not set forth in writing; a written document, (D3) any related trust agreementsthe most recent summary plan description together with the summary or summaries of material modifications thereto, insurance contractsif any, insurance policies (4) the three most recent annual actuarial valuations, if any, (5) all Internal Revenue Service (“IRS”) or other documents Department of any funding arrangements; Labor (“DOL”) determination, opinion, notification and advisory letters, (E6) any written notices the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, (7) all material correspondence to or from any Governmental Authority relating to any material compliance issues Entity received in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISAthree years, (28) all discrimination tests for the most recent three plan years, and (9) a “multiemployer plan” within the meaning all material written agreements and contracts currently in effect, including (without limitation) administrative service agreements, group annuity contracts, and group insurance contracts, and any and all forms of Section 4001(a)(3) of ERISA award or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA)similar agreements thereunder.
(c) Each Company Benefit Plan has been maintained, operated maintained and administered, administered in all material respects, respects in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations (foreign and domestic), including (without limitation) ERISA and the Code, which are applicable Lawto such Company Benefit Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Company Benefit Plans have been timely made or accrued. All bonuses payable to employees of the Company or any Company Subsidiary with respect to performance in periods including all or a portion of calendar year 2008 have been fully paid. Each Company Benefit Plan intended to be qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code is so qualified and either: (1) has obtained a currently effective favorable determination notification, advisory and/or opinion letter, as applicable, as to its qualified status (or the qualified status of the master or prototype form on which it is established) from the IRS covering the amendments to the Code effected by the Tax Reform Act of 1986 and all subsequent legislation for which the IRS will currently issue such a letter, and no amendment to such Company Benefit Plan has been adopted since the date of such letter covering such Company Benefit Plan that would adversely affect such favorable determination; or (2) still has a remaining period of time in which to apply for or receive such letter and to make any amendments necessary to obtain a favorable determination. Except as disclosed in the Filed Company SEC Documents, from December 31, 2007, there has not been any adoption or amendment in any material respect by the Company or any Company Subsidiary of any Company Benefit Plans.
(d) No nonexempt plan currently or ever in the past maintained, sponsored, contributed to or required to be contributed to by the Company, any Company Subsidiary, or any of their respective current or former ERISA Affiliates is or ever in the past was (1) a “prohibited transactionmultiemployer plan” as defined in Section 3(37) of ERISA, (2) a plan described in Section 413 of the Code, (3) a plan subject to Title IV of ERISA, (4) a plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA, or (5) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code. The term “ERISA Affiliate” means any person that, together with the Company or any Company Subsidiary, would be deemed a “single employer” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries414(b), (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractorc), (Cm) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (Do) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (Hi/Fn Inc)
Company Benefit Plans. (a) Section 3.18(aSchedule 3.12(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) any other employmentretirement, individual consultingpost-retirement, bonuspension, stock option, stock purchase or other equitynon-based, benefit, incentive qualified deferred compensation, profit sharing, savings, retirement, disability, vacation, deferred compensationleave of absence, health benefit, welfare benefit, fringe benefit, life insurance, accident insurance, disability insurance, severance, terminationchange-in-control, retentionemployment, change of control and other similar fringestock-based, welfare option, bonus, or incentive plan, policy, arrangement, agreement or program providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former employeedirector, individual consultant officer or director employee of the Company or any of its Subsidiaries, in each case, that is maintained, sponsored or with respect contributed to by the Company or any of its Subsidiaries, and under which the Company or any of its Subsidiaries has any current material obligation or future Liability liability (the each a “Company Benefit PlansPlan”). As of the date hereof, with .
(b) With respect to each Company Benefit Plan, to the extent applicable, the Company has made available provided to Parent complete Purchaser copies of, if applicable (i) plan documents and accurate copies of any trust agreements (Aincluding all amendments and modifications thereto), (ii) the most recent summary plan description, (iii) the last three (3) annual report reports on Form 5500 and all attachments thereto filed with the IRSDepartment of Labor, including all schedules thereto; (Biv) the most recent actuarial valuation or financial statements, (v) the most recent determination or opinion letter from issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(aInternal Revenue Service, and (vi) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any all related trust agreements, insurance contracts, insurance policies or third-party administrator agreements and other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any agreements which implement such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA)Plans.
(c) Each Company Benefit Plan has been funded, maintained, operated operated, and administered, administered in all material respects, respects in compliance accordance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of Laws, including ERISA, the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Planand the Patient Protection and Affordable Care Act.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under meet the qualification requirements of Section 401 401(a) of the Code has received a favorable determination determination, advisory or opinion letter from as to its qualification and no determination, advisory or opinion letter with respect to any such Company Benefit Plan has been revoked, nor, to the IRS to knowledge of Company, is any such effect and nothing revocation threatened. To the knowledge of the Company, no event has occurred or is that could reasonably be expected to cause result in the loss disqualification of any such qualificationCompany Benefit Plan under Section 401(a) of the Code.
(ge) Neither the execution or delivery of this Agreement, nor the consummation None of the Transactions will (either alone Company or upon the occurrence any of any additional its Subsidiaries maintains, sponsors, contributes to or subsequent events) (A) result in any payment or benefit becoming due or payableis required to contribute to, or required has any liability, including on account of an ERISA Affiliate, with respect to be provided(i) a “multiemployer plan” as defined in Section 3(37) of ERISA, (ii) a plan described in Section 413 of the Code, (iii) a plan subject to Title IV of ERISA, (iv) a plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA, or (v) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code. None of the Company, any of its Subsidiaries, or any of their respective ERISA Affiliates is liable for any “withdrawal liability” (within the meaning of Section 4201 of ERISA).
(f) With respect to the Company Benefit Plans, (i) there are no audits, investigations, or material actions, suits or claims (other than routine claims for benefits in the normal operation of the Company Benefit Plans) that are pending or, to any directorthe knowledge of the Company, employee or independent contractor of threatened against the Company or any of its Subsidiaries, and (Bii) increase to the amount knowledge of the Company, no facts or value of any benefit or compensation otherwise payable or required circumstances exist that would reasonably be expected to be provided give rise to any such directoraudits, employee investigations, actions, suits or independent contractorclaims.
(g) Except as set forth on Schedule 3.12(g), no Company Benefit Plan provides death or medical benefits beyond termination of service or retirement other than (Ci) result in the acceleration of the time of paymentcoverage mandated by Law, vesting or funding of any such benefit or compensation or (Dii) except as would not be material to the death or retirement benefits under a Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Benefit Plan qualified under Section 280G 401(a) of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from To the Company or any of its Subsidiaries as a result knowledge of the imposition Company, there are no pending, promised or committed, undertakings of additional taxes under Section 4999 a binding nature to create or Section 409A of the Codeterminate any Company Benefit Plan or to make improvements, increases or changes to any Company Benefit Plan.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to complies in all material respects, in both form and operation, with the requirements of Section 409A of the Code is in compliance in and final U.S. Treasury regulations issued thereunder and all material respects with other Internal Revenue Service guidance issued under Section 409A 409A, and no payment to be made under any Company Benefit Plan is, or to the knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code.
(j) All contributions Schedule 3.12(j) identifies each Non-US Benefit Plan. Each Non-US Benefit Plan required to be made registered or approved has been registered or approved and has been maintained and administered in good standing with applicable Governmental Authority. To the knowledge of the Company, each Non-US Benefit Plan that is intended to qualify for favorable tax benefits under the applicable Laws of any jurisdiction is so qualified, and no condition exists and no event has occurred that would reasonably be expected to result in the loss or revocation of such status. No Non-US Benefit Plan is a defined benefit pension plan or scheme. There are no unfunded liabilities for termination indemnities related to any Company period of time prior to the Closing under any Non-US Benefit Plan or with respect to any employees or former employees of the Company and its Subsidiaries outside of the United States, except for any liabilities reflected on the Financial Statements or under plans or programs mandated by applicable Law.
(k) Except as set forth on Schedule 3.12(k), the execution of this Agreement and the consummation of the transactions contemplated by this Agreement (alone or together with any plan document other event which, standing alone, would not by itself trigger such entitlement or other contractual undertakingacceleration) will not (i) entitle any Person to any payment, and all premiums due forgiveness of indebtedness, vesting, distribution, or payable increase in benefits under or with respect to insurance policies funding any Company Benefit Plan, for (ii) otherwise trigger any period through acceleration (of vesting or payment of benefits or otherwise) under or with respect to any Company Benefit Plan, (iii) trigger any obligation to fund or increase the date amount payable under any Company Benefit Plan, (iv) obligate Purchaser or any of this Agreement have been timely made or paid in full in all material respects or, its Affiliates (including the Company and its Subsidiaries following the Closing) to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements continue any of the Company included Benefit Plans, or (v) result in any breach or violation of, or a default under, any of the Company SEC ReportBenefit Plans.
(l) Schedule 3.12(l) contains a list of all SARs that have been granted and are outstanding under the SARs Plan, together with the following information with respect to each such SARs grant: (i) the name of the holder of such SARs, (ii) the amount of such SARs that are granted and outstanding, (iii) the grant date of such SARs, (iv) the vesting schedule for such SARs, and (v) the exercise price of such SARs. The Company has not granted any SARs or other equity-linked securities other than those set forth on Schedule 3.12(l).
(m) Other than payments made pursuant to the SARs Plan, there will be no Transaction Bonuses.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 3.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material Company Benefit Plan and denotes with an asterisk each material Non-U.S. Plan; provided, however, that Section 3.11(a) of the Company Disclosure Letter need not list (i) any agreement, arrangement, plan, policy or program maintained by or required to be maintained by a Governmental Entity, or (ii) any employment agreement, offer letter or consulting agreement for an employee or service provider with annual base compensation less than $500,000 or that does not provide material transaction, change in control (excluding the acceleration of any equity or equity-based awards) or severance benefits in excess of One Million Dollars ($1,000,000) (other than those required by applicable law). “Company Benefit Plan” means each “employee benefit plan” (as defined in Section 3(3) of ERISA), whether and any other agreement, arrangement, plan, policy or not subject to ERISA and program (ii) other including any employment, individual consulting, bonus, stock optioncommission, stock purchase incentive or other deferred compensation, employee loan, note or pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, retirement, supplemental retirement, profit sharing, change of control and other in control, fringe benefits vacation, sick, insurance, pension (including pension funds, managers’ insurance or similar fringefunds, welfare education fund, medical, welfare, fringe or other employee benefit similar plan, policy, program, agreementagreement or other arrangement), contractmedical, policy welfare, fringe or binding arrangement (whether similar plan, policy, program, agreement or not in writingother arrangement) maintained providing compensation or contributed other benefits to for the benefit of any current or former employeedirector, officer, employee or other individual consultant service provider, which is maintained, sponsored or director contributed to by the Company or any of the Company Subsidiaries or under which the Company or any of the Company Subsidiaries has any obligation or liability; provided that no “multiemployer plan,” within the meaning of Section 3(37) or 4001(a)(3) of ERISA shall be a Company Benefit Plan hereunder. “Non-U.S. Plan” means any Company Benefit Plan maintained, sponsored or contributed to (or required to be contributed to) by the Company or any of its Subsidiaries, Subsidiaries or with respect pursuant to which the Company or any of its Subsidiaries has or may have any current or future Liability (the “Company Benefit Plans”). As liabilities outside of the date hereofUnited States primarily for the benefit of employees, with respect to each Company Benefit Plan, to consultants or individual independent contractors primarily working or engaged in a jurisdiction other than the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plansUnited States, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement any agreement, arrangement, plan, policy or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, program maintained by or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as maintained by a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the CodeGovernmental Entity.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a4.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with Plan.
(b) With respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent or its Representatives, to the extent applicable, true, correct and complete copies of: (i) such Company Benefit Plan, including any amendments thereto, and accurate copies any trust agreement, insurance contract or other funding vehicle relating to such plan (or if such Company Benefit Plan is not set forth in a written document, a written description of such plan specifying its material terms); (Aii) the most recent summary plan description for such Company Benefit Plan for which such summary plan description is required, together with summaries of all material modifications thereto; (iii) the two (2) most recent annual report reports on Form 5500 and all schedules and financial statements attached thereto and all attachments thereto filed with the IRS, including all schedules theretoInternal Revenue Service with respect to such Company Benefit Plan (if applicable); (Biv) the most recent determination letter from or opinion letter, if any, issued by the IRS for Internal Revenue Service with respect to such Company Benefit Plan; and (v) any material non-routine correspondence with any Governmental Entity regarding any Company Benefit Plan that during the past three (3) years.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole: (i) each Company Benefit Plan has been administered in accordance with its terms and all Applicable Legal Requirements, including ERISA and the Code; and (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made. Each Company Benefit Plan which is intended to qualify be qualified within the meaning of Section 401(a) of the Code (A) has received a favorable determination or opinion letter as to its qualification, or (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, and nothing has occurred and no circumstances exist that would reasonably be expected to result in the loss of the qualification of such plan under Section 401(a) of the Code; .
(Cd) the plan documents and summary plan descriptions, or a written description of the terms of any No Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has was within the last past six (6) years contributed years, and neither the Company nor any Company Subsidiaries nor any of their ERISA Affiliates has, within the past six (6) years, sponsored, been obligated to contribute to, or has any reasonable expectation of current or contingent liability in respect of: (1i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), ) subject to Section 302 Title IV of ERISA, Section 412 of the Code or Title IV Section 302 of ERISA, ERISA (2) a including any “multiemployer plan” within the meaning of Section 4001(a)(3(3)(37) of ERISA or ERISA); (3ii) a “multiple employer plan” (as defined in Section 4063 or 4064 413(c) of ERISA).
the Code; (ciii) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt a “prohibited transactionmultiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA; or (iv) a “funded welfare plan” within the meaning of Section 419 of the Code.
(e) Neither the Company, any Company Benefit Plan nor, to the Knowledge of the Company, any trustee, administrator or other third-party fiduciary and/or party-in-interest thereof, has engaged in any breach of fiduciary responsibility or any “prohibited transaction” (as such term is defined in Section 406 of ERISA and or Section 4975 of the Code) to which Section 406 of ERISA or Section 4975 of the Code has occurred applies and which could subject the Company or is reasonably expected any ERISA Affiliate to occur with respect to any Company Benefit Plan.
(d) As the tax or penalty on prohibited transactions imposed by Section 4975 of the Code, which, assuming the taxable period of such transaction expired as of the date hereof, there could reasonably be expected to result in a material liability to the Group Companies, taken as a whole. Neither the Company nor any Company Subsidiaries has engaged in a transaction that would reasonably be expected to result in a material civil penalty under Sections 409 or 502(i) of ERISA.
(f) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole, with respect to the Company Benefit Plans or their administrators or fiduciaries: (i) no actions, suits or claims (other than routine claims for benefits in the ordinary course) are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect threatened; and (ii) to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees Knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims.
(g) None of the Company Benefit Plans provides for, and the Group Companies have no liability in respect of, post-retiree health, welfare or life insurance benefits or coverage for any participant or any beneficiary of a participant, except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or similar state or other than pursuant to Legal Requirements and at the sole expense of such participant or the participant’s beneficiary.
(h) The Group Companies and each of their ERISA Affiliates have complied in all material respects with (i) the notice and continuation coverage requirements, and all other requirements, of Section 4980B of the Code or any similar Law.
and Parts 6 and 7 of Title I of ERISA, and the regulations thereunder, and (fii) Each the affordability and minimum essential coverage requirements, and all other requirements, of the Patient Protection and Affordable Care Act of 2010, as amended, in each case, with respect to each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualificationgroup health plan.
(gi) Neither the execution or and delivery of this Agreement, stockholder or other approval of this Agreement nor the consummation of the Transactions will (could, either alone or upon the occurrence of in connection with any additional or subsequent events) other event(s): (Ai) result in any material payment or benefit becoming due or payable, or required to be provided, to any directorcurrent or former employee, employee officer, contractor or independent contractor director of the Company or its Subsidiaries or under any of its Subsidiaries, Company Benefit Plan; (Bii) increase the any material amount of compensation or value of any benefit or compensation benefits otherwise payable or required to be provided to any such directorcurrent or former employee, employee officer, contractor or independent contractor, director of the Company or its Subsidiaries or under any Company Benefit Plan; (Ciii) result in the acceleration of the time of payment, funding or vesting or funding of any such benefit material benefits to any current or compensation former employee, contractor or director of the Company or its Subsidiaries or under any Company Benefit Plan; (iv) directly or indirectly cause the Company to transfer or set aside any assets to fund any material benefits under any Company Benefit Plan; or (Dv) except as would not be material to the Company and its Subsidiaries taken as a whole, result in any limit on the payment right to merge, amend or terminate any Company Benefit Plan on or after the Effective Time.
(j) Neither the execution and delivery of any amount that couldthis Agreement nor the consummation of the Transactions will, individually either alone or in combination connection with any other payment or benefitevent(s), constitute an give rise to any “excess parachute payment” within as defined in Section 280G(b)(1) of the meaning of Code or any excise tax owing under Section 280G 4999 of the Code.
(hk) No person is entitled The Company maintains no obligations to receive gross-up, indemnify, make whole or reimburse any additional payment (including individual for or with respect to any tax gross up payment) from the Company or any of its Subsidiaries as a result related interest or penalties incurred by such individual, including under Sections 409A or 4999 of the imposition of additional taxes under Section 4999 Code or Section 409A of the Codeotherwise.
(il) Each Company Benefit Plan that which is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is has been established, operated and maintained in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full Code in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Reportrespects.
Appears in 1 contract
Samples: Merger Agreement (InterPrivate II Acquisition Corp.)
Company Benefit Plans. (a1) Section 3.18(a) of the The Company Disclosure Letter sets forth has Previously Disclosed a complete and accurate list of each material (i) “all employee benefit plan” (as defined in Section 3(3) of ERISA)plans, whether or not subject to ERISA and (ii) other employmentprograms, individual consultingagreements, bonuspolicies, stock optionpractices, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed arrangements providing benefits to for the benefit of any current or former employee, individual consultant officer or director of the Company or any of its Subsidiaries, Company Subsidiary or with respect any beneficiary or dependent thereof that is sponsored or maintained by the Company or any Company Subsidiary or to which the Company or any Company Subsidiary contributes or is obligated to contribute or is party, whether or not written, including any employee welfare benefit plan within the meaning of its Subsidiaries has any current or future Liability Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (the “Company Benefit PlansERISA”). As , any employee pension benefit plan within the meaning of the date hereofSection 3(2) of ERISA (whether or not such plan is subject to ERISA) and any bonus, with incentive, deferred compensation, vacation, stock purchase, stock option, severance, employment, change of control, consulting or fringe benefit plan, program, agreement or policy (“Benefit Plan”).
(2) With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent the Investor a true, correct and complete and accurate copies of copy of: (A) the most recent annual report on Form 5500 filed with the IRSeach writing constituting a part of such Benefit Plan, including all schedules theretoagreements, plan documents, employee communications, benefit schedules, trust agreements, and insurance contracts and other funding vehicles; and (B) the most recent determination letter from the IRS for IRS, if any. Except as specifically provided in the foregoing documents delivered or made available to the Investor, there are no amendments to any Company Benefit Plan that is intended to qualify under Section 401(a) of have been adopted or approved nor has the Code; (C) the plan documents and summary plan descriptions, Company or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices Subsidiary undertaken to or from any Governmental Authority relating to any material compliance issues in respect of make any such Company amendments or to adopt or approve any new Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each The Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Previously Disclosed each Benefit Plan that is intended to be a “qualifiedqualified plan” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g“Qualified Plans”) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”). The Internal Revenue Service has issued a favorable determination letter with respect to each Qualified Plan and the related trust that has not been revoked, and there are no circumstances and no events have occurred that could adversely affect the qualified status of any Qualified Plan or the related trust. No Benefit Plan is intended to meet the requirements of Code Section 501(c)(9).
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j4) All contributions required to be made to any Company Benefit Plan by applicable Law, law or regulation or by any plan document or other contractual undertakingdocument, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement hereof have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreementhereof, have been fully reflected in the financial statements.
(5) With respect to each Benefit Plan, the Company and the Company Subsidiaries have complied, and are now in compliance, in all material respects, with all provisions of ERISA, the Code and all laws and regulations applicable to such Benefit Plan. Each Benefit Plan has been administered in all material respects in accordance with its terms. There is not now, nor do any circumstances exist that are likely to give rise to, any requirement for the posting of security with respect to a Benefit Plan or the imposition of any lien on the consolidated financial statements assets of the Company included or any Company Subsidiary under ERISA or the Code. Each Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance in all material respects with Section 409A of the Code since December 24, 2004, based upon a good faith, reasonable interpretation of the applicable Department of the Treasury guidance. All stock options to purchase shares of Common Stock have been granted in compliance with the terms of the applicable Benefit Plans, with applicable law, and with the applicable provisions of the Company’s governing organization documents as in effect at the applicable time, and all such stock options are accurately disclosed as required under applicable law in (x) the Company’s filings with the SEC, including the financial statements contained therein or attached thereto (if amended or superseded by a filing with the SEC made prior to the date hereof, as so amended or superseded), and (y) the Tax returns of the Company. In addition, the Company has not issued any stock options or any other similar equity awards pertaining to shares of Common Stock under any Benefit Plan with an exercise price that is less than the “fair market value” of the underlying shares of Common Stock on the date of grant, as determined for financial accounting purposes under generally accepted accounting principles applied on a consistent basis.
(6) With respect to each Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (B) the fair market value of the assets of such Benefit Plan equals or exceeds the actuarial present value of all accrued benefits under such Benefit Plan (whether or not vested), based upon the actuarial assumptions used to prepare the most recent actuarial report for such Benefit Plan; (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such reportable event; (D) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full; (E) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by the Company SEC Reportor any Company Subsidiary; and (F) the PBGC has not instituted proceedings to terminate any such Benefit Plan and, to the Company’s knowledge, no condition exists that would reasonably be expected to result in such proceedings being instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Benefit Plan.
(7) No Benefit Plan is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA (a “Multiemployer Plan”) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a “Multiple Employer Plan”). None of the Company and the Company Subsidiaries nor any entity, trade or business, whether or not incorporated, which together with the Company and the Company Subsidiaries would be deemed a “single employer” within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an “ERISA Affiliate”) has, at any time during the last six years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan. None of the Company and the Company Subsidiaries nor any of their respective ERISA Affiliates has incurred any withdrawal liability as a result of a complete or partial withdrawal from a Multiemployer Plan, as those terms are defined in Part I of Subtitle E of Title IV of ERISA, that has not been satisfied in full.
(8) There does not now exist, nor do any circumstances exist that would reasonably be expected to result in any liability (A) under Title IV or Section 302 of ERISA, (B) under Sections 412 and 4971 of the Code and (C) as a result of a material failure to comply with the continuation coverage, requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, that would be a liability of the Company and any Company Subsidiary or any of their respective ERISA Affiliates, other than such liabilities that have been Previously Disclosed. Without limiting the generality of the foregoing, neither the Company nor any Company Subsidiary, nor any of their respective ERISA Affiliates, has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA.
(9) The Company and the Company Subsidiaries have no liability for life, health, medical or other welfare benefits to 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 and at no expense to the Company and the Company Subsidiaries. The Company and each Company Subsidiary have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage.
(10) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in any material payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former employee, officer or director of the Company or any Company Subsidiary from the Company or any Company Subsidiary under any Benefit Plan or otherwise, (B) materially increase any benefits otherwise payable under any Benefit Plan, (C) result in any acceleration of the time of payment or vesting of any such benefits, (D) require the funding or increase in the funding of any such benefits or (E) result in any limitation on the right of the Company or any Company Subsidiary to amend, merge, terminate or receive a reversion of assets from any Benefit Plan or related trust. Neither the Company nor any Company Subsidiary has taken, or permitted to be taken, any action that required, and no circumstances exist that will require the funding, or increase in the funding, of any benefits or resulted, or will result, in any limitation on the right of the Company or any Company Subsidiary to amend, merge, terminate or receive a reversion of assets from any Benefit Plan or related trust.
(11) None of the Company and the Company 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 could subject the Company, any Company Subsidiary or any person that the Company or any Company Subsidiary has an obligation to indemnify, to any material Tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA.
(12) There are no pending or threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to the Company’s knowledge, no set of circumstances exists which would reasonably be expected to give rise to a claim or lawsuit, against the Benefit Plans, any fiduciaries thereof with respect to their duties to the Benefit Plans or the assets of any of the trusts under any of the Benefit Plans which could reasonably be expected to result in any material liability of the Company or any Company Subsidiary.
Appears in 1 contract
Samples: Investment Agreement (Mbia Inc)
Company Benefit Plans. (a) Section 3.18(aSchedule 4.12(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date of this Agreement, of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA), ”) (whether or not subject to ERISA ERISA), and (ii) other each material employment, individual consulting, compensation, severance, retirement, change in control, retention, transaction, Tax gross-up, deferred compensation, employee loan, relocation, performance awards, bonus, incentive, stock option, stock purchase equity or other equity-based, benefitshare purchase, incentive compensationshare bonus, profit sharingphantom stock, savingsstock appreciation right, pension, supplemental retirement, fringe benefits, short and long term disability, vacationmedical, deferred compensationdental, severancewelfare, terminationcafeteria or similar plan, retention, change of control and other similar fringe, welfare or other employee benefit planpolicy, program, contract, agreement, contract, policy fund or binding other arrangement (whether written or not unwritten and funded or unfunded), in writing) maintained each case, which is sponsored, maintained, contributed to, or required to be contributed to for the benefit of any current or former employee, individual consultant or director of by the Company or any of its Subsidiaries, Subsidiaries or any of their respective ERISA Affiliates or with respect to which the Company or any of its Subsidiaries or any of their respective ERISA Affiliate has any current or future Liability potential liabilities (the each a “Company Benefit PlansPlan”). As of the date hereof, with .
(b) With respect to each Company Benefit Plan, the Company has, to the extent applicable, the Company has made available to Parent Acquiror correct and complete and accurate copies of (Ai) such Company Benefit Plan, if written (including all material amendments and attachments thereto) (ii) a written summary of the material terms thereof, if the Company Benefit Plan is not in writing (iii) all related trust documents; (iv) all insurance contracts or other funding arrangements (v) the most recent summary plan description and any summary of material modifications thereto, (vi) the two most recent annual report reports on Form 5500 filed with the IRSInternal Revenue Service, including all schedules thereto; (Bvii) the most recent determination or opinion letter issued by the Internal Revenue Service, (viii) the most recent audited financial statement and/or actuarial valuation, and (ix) any notices to or from the IRS for Internal Revenue Service or any Governmental Authority dated within the past three (3) years relating to any compliance issues.
(c) Each Company Benefit Plan that is intended to qualify under be qualified within the meaning of Section 401(a) of the Code; Code (Ci) has received a favorable determination or opinion letter from the plan documents Internal Revenue Service stating that it and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreementsmeets the requirements of Section 401(a) of the Code and any related trust is Tax-exempt under Section 501 of the Code or (ii) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer and, insurance contractsto the knowledge of the Company, insurance policies as of the date hereof, nothing has occurred and no condition or other documents of any funding arrangements; and (E) any written notices circumstance exists that could reasonably be expected to or from any Governmental Authority relating to any material compliance issues in respect adversely affect the qualified status of any such Company Benefit PlanPlan or the exemption of any related trust.
(bd) Neither the CompanyExcept as set forth on Schedule 4.12(d), any no Company Benefit Plan is, and none of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 nor any of the Code maintains or has their respective ERISA Affiliates have, within the last past six (6) years sponsored, maintained, contributed to or been required to sponsor, maintain or contribute to, or otherwise incurred any actual or contingent liability, nor could reasonably be expected to have any actual or contingent liability, with respect to, (1i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) Section 302 of ERISA or Section 412 of the Code, including a “multiemployer plan” plan within the meaning of Section 3(37) or Section 4001(a)(3) of ERISA or ERISA, (3ii) a “multiple employer plan” (as defined in Section 4063 413(c) of the Code, or 4064 (iii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA).
(ce) Each Company Benefit Plan has been maintainedestablished, operated and administered, maintained in all material respects, respects in compliance accordance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of Law (including ERISA and Section 4975 the Code) and, to the knowledge of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As Company, as of the date hereof, there are no Legal Proceedings pending orevent has occurred and no condition exists that would reasonably be expected to subject the Company or any of its Subsidiaries to any material Taxes, to fine, Lien, penalty or other liability imposed by ERISA, the Knowledge Code or other applicable Laws in respect of the Company, threatened on behalf of or against any Company Benefit Plan. Except as would not reasonably be expected to be material, individually or in the assets of any trust under any Company Benefit Planaggregate, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation Company and its Subsidiaries, taken as a whole, as of such plansthe date hereof, no Actions (other than routine claims for benefitsbenefits in the ordinary course) with respect to the Company Benefit Plans are pending or threatened in writing against the Company or any of its Subsidiaries.
(ef) No Except as set forth on Schedule 4.12(f), no Company Benefit Plan provides for post-retirement for, and none of the Company or any of its Subsidiaries nor any of their respective ERISA Affiliates provide, have any obligation to provide, or have any liability in respect of, contributions or payments in respect of any retiree or post-employment health, medical or other welfare or life insurance benefits to former employees any individual, except where the cost of such benefits is borne entirely by the Companyindividual (or his or her eligible dependents or beneficiaries), other than including pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualificationCode.
(g) Neither Except pursuant to the Company Benefit Plans disclosed on Schedule 4.12(g), neither the execution or and delivery of this Agreement, Agreement by the Company nor the consummation of the Transactions will transactions contemplated by this Agreement (either alone or upon together with any other event, including any termination of employment on or following the occurrence date hereof) shall (i) entitle any employee, officer, director, or individual service provider of the Company or any additional of its Subsidiaries to any severance pay or subsequent events) (A) result in any other compensatory payment or benefit becoming due (or payableany increase in severance pay or increase in compensation or benefits), (ii) accelerate the time of payment, funding, or required to be providedvesting of any compensation or benefits for any current or former employee, to any officer, director, employee or independent contractor individual service provider of the Company or any of its Subsidiaries, (Biii) increase require the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or benefits (Dthrough a grantor trust or otherwise) except as would not be material to the Company and its Subsidiaries taken as a wholefor any such employee, result in the payment officer, director, or individual service provider of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries or (iv) limit the right of the Company or any of its Subsidiaries to merge, amend or terminate any Company Benefit Plan.
(h) Except as set forth on Schedule 4.12(h), neither the execution and the delivery of this Agreement nor the consummation of the transactions contemplated hereby, whether alone or in connection with any other event, will result in payments or benefits (including accelerated vesting) that would (i) not be deductible to the payor as a result of Section 280G of the imposition of additional taxes Code or (ii) result in any excise tax on the payee under Section 4999 or Section 409A of the Code.
(i) Each Neither the Company Benefit Plan that is a “nonqualified deferred compensation plan” nor any of its Subsidiaries has any obligation to provide any gross-up, make-whole or additional payments by reason of any Taxes (as defined in including any Taxes under Section 409A(d)(1) 409A or 4999 of the Code) that is subject being imposed on any Person or any interest or penalty related thereto.
(j) With respect to Section 409A the outstanding Options (i) each Option was granted under the 2018 Option Plan of Shingle Acquisition Holdings, Inc. (the “Equity Incentive Plan”) in accordance with the terms of the Code Equity Incentive Plan and all applicable Laws, (ii) the Company has made available to Acquiror true, correct and complete copies of each award agreement (or forms thereof to the extent they all take the same form), and (iii) there is no agreement, arrangement or understanding (written or oral) to amend, modify or supplement any award agreement in compliance any case from the award agreements made available to Acquiror. The Equity Incentive Plan and the Company’s Equity Growth Incentive Plan are the only plan or program maintained by the Company or any of its Subsidiaries under which compensatory equity or equity-based awards have been or may be granted and each Option has an exercise price equal to no less than the fair market value of the underlying Common Share on the grant date, as determined in all material respects accordance with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (Home Depot, Inc.)
Company Benefit Plans. (a) Section 3.18(a) As of the Company Disclosure Letter date hereof, Schedule 3.19(a) sets forth a correct and complete and accurate list of each Company Benefit Plan and each material Seller Benefit Plan in which any Transferred Employees participate. For each Company Benefit Plan, Sellers have made available to Buyer a copy of such plan (or a description of the material terms, if such plan is not written) and all amendments thereto and, as applicable: (i) all trust agreements, insurance contracts or other funding arrangements and amendments thereto; (ii) the current summary plan description and summaries of material modifications; (iii) the most recent favorable determination or opinion letter or advisory from the IRS; (iv) the annual return/report (Form 5500) and accompanying schedules and attachments thereto for the most recently completed plan year; and (v) the most recently prepared actuarial report and financial statements. For each material Seller Benefit Plan, Sellers have made available to Buyer a copy or summary of such plan (or a description of the material terms, if such plan is not written).
(b) Schedule 3.19(b) sets forth, for each equity (or equity based) compensatory award held by a Transferred Employee, the type of award, grant date, number of shares, vesting schedule (including any acceleration provisions) and, if applicable, performance goals.
(c) Except as set forth on Schedule 3.19(c):
(i) no Company Benefit Plan or Seller Benefit Plan in which any Transferred Employees participate is a “employee benefit multiemployer pension plan” (as defined in Section 3(33(37) or 4001(a)(3) of ERISA), whether ) or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit a “multiple employer plan, program, agreement, contract, policy or binding arrangement (whether or not ” described in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a413(c) of the Code; , and the Acquired Companies have not, within the last five (C5) the plan documents and summary plan descriptionsyears, contributed to, been required to contribute to, or a written description of the terms of otherwise been reasonably expected to have any Liability in connection with, any such plan;
(ii) no Company Benefit Plan that or Seller Benefit Plan in which any Transferred Employees participate is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in within the meaning of Section 3(2) of ERISA), ERISA that is subject to Section 302 Title IV of ERISA, ERISA or Section 412 of the Code or Title IV Code;
(iii) each Company Benefit Plan has been established and administered in all material respects in accordance with its terms and in compliance with applicable Laws, including, in the case of ERISAU.S. Benefit Plans, ERISA and the Code;
(2iv) each Seller Benefit Plan in which any Acquired Company is a participating employer that is intended to be “multiemployer planqualified” within the meaning of Section 4001(a)(3401(a) of ERISA the Code has received a favorable determination, opinion or advisory letter from the IRS indicating that it is so qualified, and to the Knowledge of the Business, nothing has occurred since the issuance of the IRS determination, opinion or advisory letter referred to in this Section 3.19(c)(iv) that would affect the qualified status of any such Seller Benefit Plan in any material respect;
(3v) a no “multiple employer plandisqualified person” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 4975 of ERISA and the Code) or any “party in interest” (within the meaning of Section 3(14) of ERISA) has engaged in any non-exempt “prohibited transaction” (within the meaning of Section 4975 of the Code has occurred or is reasonably expected to occur Section 406 of ERISA) with respect to any Company Benefit Plan.Plan which could subject the Acquired Companies to any Liability or Tax under Section 502(i) of ERISA or Section 4975 of the Code, except where any such prohibited transaction would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(dvi) As each Company Benefit Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the date hereofCode has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder;
(vii) none of the Company Benefit Plans provide health care or any other non-pension benefits to Transferred Employees after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA or other applicable Laws);
(viii) each Company Benefit Plan is in compliance in all material respects with the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, to the extent applicable to such Company Benefit Plan;
(ix) there are is no Legal Proceedings pending or, to the Knowledge of the CompanyBusiness, threatened on behalf of or against Action (other than a routine claim for benefits) with respect to any Company Benefit Plan, except where any such Action would not, individually or in the assets aggregate, reasonably be expected to have a Material Adverse Effect;
(x) each Company Benefit Plan that covers Business Employees located primarily outside the United States, if such plan (i) is intended to qualify for special tax treatment, such plan meets all the requirements for such treatment in all material respects, and (ii) is required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles; and
(xi) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any trust under any other event) result in, accelerate the vesting, funding of a Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payableof, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of of, any payment, severance, or benefit or compensation otherwise payable or required to be provided to any such directorTransferred Employee. No amount paid or payable in connection with the transactions contemplated by this Agreement will, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually either alone or in combination with any other payment or benefitanother event, constitute be an “excess parachute payment” within the meaning of Section 280G of the Code.
Code (hdetermined without regarding the exceptions provided for in Section 280G(b)(5) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition Code). Neither the execution and delivery of additional taxes this Agreement nor the consummation of the transactions contemplated by this Agreement could (either alone or in conjunction with any other event) result in a requirement to pay any Tax “gross-up” or similar “make-whole” payments to any Transferred Employee, including under Section 4999 409A of Code or Section 409A 4999 of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Purchase Agreement (RXO, Inc.)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material (i) Company Benefit Plan. For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) or any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, complete and accurate correct copies of (A) such Company Benefit Plan (or, if not written a written summary of its material terms) and all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (B) the most recent summary plan description, including any summary of material modifications, (C) the most recent annual report on (Form 5500 series) filed with the IRSIRS with respect to such Company Benefit Plan, including all schedules thereto; (BD) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, and (E) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit PlanPlan and any pending request for such a determination letter.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (Welsbach Technology Metals Acquisition Corp.)
Company Benefit Plans. (a) Section 3.18(aSchedule 4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “written employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase plan providing compensation or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer or employee, individual consultant which are maintained, sponsored or director of contributed to or by the Company or any of its Subsidiaries, or with respect to Subsidiaries and under which the Company or any of its Subsidiaries has any current material obligation or future Liability liability (the each a “Company Benefit PlansPlan”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the The Company has delivered or made available to Parent Buyer or its representatives true and complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any each such Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority agreement relating to any material compliance issues in respect of any such Company Benefit Planplan.
(b) Neither Except as would not reasonably be expected to have a Material Adverse Effect on the Company, any of its Subsidiaries or any other trade or business : (whether or not incorporatedi) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each each Company Benefit Plan has been maintained, operated administered and administered, maintained in all material respects, in compliance accordance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected Laws, (ii) all contributions required to occur be made with respect to any Company Benefit PlanPlan on or before the date hereof have been made and (iii) all contributions or payments for any period ending on or before the Closing Date which are not yet due have been paid or accrued on the Financial Statements.
(dc) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge None of the Company, threatened on behalf its Subsidiaries, nor any of their ERISA Affiliates has ever maintained, contributed to or against been obligated to contribute to, or had any Company Benefit Plan, the assets Liability in respect of any trust under any Company Benefit Plan, (i) Multiemployer Plan or (ii) a pension plan (within the plan sponsor, plan administrator meaning of Section 3(2) of ERISA) subject to Title IV or any fiduciary Section 302 of ERISA or any Company Benefit Plan with respect to Sections 412 or 4971 of the administration or operation of such plans, other than routine claims for benefits.
(e) Code. No Company Benefit Plan provides for post-retirement life or post-employment welfare health insurance, benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or coverage for any participant or any similar beneficiary of a participant, except as may be required by Law.
(fd) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither Except as set forth on Schedule 4.13(d), neither the execution or and delivery of this Agreement, nor the consummation of the Transactions Merger will (either alone or upon the occurrence of any additional or subsequent events) (Ai) result in any payment (including, without limitation, severance, golden parachute, bonus or benefit otherwise) becoming due or payable, or required to be provided, to any directorcurrent or former employee, employee or individual independent contractor or director or other Affiliate of the Company or any of its Subsidiaries, ; (Bii) increase the amount or value of any benefit or compensation benefits otherwise payable under any Company Benefit Plan or required to be provided to the Company’s obligation under any such director, employee or independent contractor, Company Benefit Plan; (Ciii) result in the acceleration of the time of payment, payment or vesting or funding of any such benefit payments or compensation benefits; (iv) directly or indirectly cause the funding of (D) except as would not be material to or the Company and its Subsidiaries taken as a whole, result in the payment transfer or setting aside of any amount that could, individually or in combination with assets to fund) any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes benefits under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan; or (v) limit or restrict the right to merge, for materially amend, terminate or transfer the assets of any period through Company Benefit Plans.
(e) With respect to the Company Benefit Plans, (i) as of the date of this Agreement have been timely made hereof, no Actions, suits or paid claims (other than routine claims for benefits in full in all material respects the ordinary course) are pending or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements knowledge of the Company included in Company, threatened, and (ii) to the Company SEC Reportknowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such Actions, suits or claims.
Appears in 1 contract
Samples: Merger Agreement (Seaspan CORP)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material Company Benefit Plan (iother than any individual employment agreements, offer letters, equity award agreements or similar agreements that do not materially deviate from the forms set forth on Section 4.13(a) of the Company Disclosure Letter). For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) or any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, complete and accurate correct copies of (A) such Company Benefit Plan (or, if not written a written summary of its material terms) and all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (B) the most recent summary plan description, including any summary of material modifications, (C) the most recent annual report on (Form 5500 series) filed with the IRSIRS with respect to such Company Benefit Plan, including all schedules thereto; (BD) the most recent determination letter from actuarial report or other financial statement relating to such Company Benefit Plan, (E) the IRS most recent discrimination tests required under the Code for any each Company Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code; , (CF) the plan documents and summary plan descriptionsmost recent determination or opinion letter, or a written description of if any, issued by the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur IRS with respect to any Company Benefit Plan.
Plan and any pending request for such a determination letter, and (dG) As a copy of all material correspondence (other than correspondence in the date hereof, there are no Legal Proceedings pending or, ordinary course) with any Governmental Authority relating to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any a Company Benefit Plan with respect to the administration received or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” sent within the meaning of Section 280G of the Codelast three years.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a) 3.11 of the Company Parent Disclosure Letter Schedules sets forth a true, correct and complete and accurate list list, as of the date of this Agreement, of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(ci) Each Company Benefit Plan has been maintained, operated and administeredadministered in compliance with its terms and all applicable Laws, in each case, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” (ii) each Company Benefit Plan which is intended to be qualified within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d401(a) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS as to such effect and nothing its qualification or may rely upon an opinion letter for a preapproved plan and, to Parent’s knowledge, no fact or event has occurred or is that would reasonably be expected to cause adversely affect the loss qualified status of any such qualificationCompany Benefit Plan or would result in material Liability to the Company or any of its Subsidiaries and (iii) the Company and its Subsidiaries are in compliance in all material respects with their obligations under the Statutory Plans.
(gc) Neither Except as set forth on Section 3.11(c) of the Parent Disclosure Schedules, neither the execution or and delivery of this Agreement, Agreement by the Company nor the consummation of the Transactions will could (either whether alone or upon the occurrence of in connection with any additional or subsequent eventsevent) (Ai) result in the acceleration or creation of any payment rights of any Person to payments or benefit becoming due benefits or payable, increases in any payments or required to be provided, to benefits under any director, employee Company Benefit Plan or independent contractor of the Company or any of its Subsidiariesotherwise, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (Cii) result in the acceleration of the time of payment, vesting funding or funding vesting, or forfeiture, of any such benefit or compensation or benefits to any Person under any Company Benefit Plan or otherwise or (Diii) except result in severance pay or any increase in severance pay upon any termination of employment.
(d) The Company has made available to GG copies of the following, as would not be material applicable, with respect to the material Company Benefit Plans: (i) current plan documents and its Subsidiaries taken as a wholeall amendments thereto, result in (ii) the payment of most recent summary plan description, (iii) the most recent determination or opinion letter received from the Internal Revenue Service, (iv) the most recent annual report (Form 5500) and accompanying schedules and (v) any amount that could, individually non-routine material correspondence to or in combination with from any other payment or benefit, constitute an “excess parachute payment” Governmental Authority dated within the meaning past three (3) years.
(e) No Company Benefit Plan (i) is subject to Title IV of ERISA or Section 280G 412 of the Code.
, (hii) No person is entitled a Multiemployer Plan, or (iii) provides for post-employment or retiree health, life or welfare benefits to receive any additional payment (including any tax gross up payment) from current or former employee other than as required by Section 4980B of the Code or similar state Law for which the covered Person pays the full cost of coverage for such Person and his or her beneficiaries or dependents. Neither the Company or nor any of its Subsidiaries as a result has or would reasonably be expected to have any actual or contingent material Liability with respect to any plan described in (i) through (iii) above, including on account of the imposition of additional taxes under Section 4999 or Section 409A of the Codeany ERISA Affiliate.
(if) Neither the Company nor any of its Subsidiaries maintains any obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual, including under Sections 409A or 4999 of the Code or otherwise.
(g) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is has been established, documented, operated and maintained in material compliance in all material respects with Section 409A of the Code, and all applicable regulations and notices issued thereunder.
(jh) All contributions required No payment, amount or benefit that could be, or has been, received by or provided to (whether in cash or property or the vesting of cash or property or the cancellation of Indebtedness) any current or former employee, officer, shareholder, director or other individual independent contractor of the Company or its Subsidiaries or any of their Affiliates as a result of, or in connection with, the execution and delivery of this Agreement or the consummation of the Transactions (whether alone or in connection with any subsequent event) could be made to any an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(i) Each Company Benefit Plan by applicable Lawthat is subject to Laws outside the United States (each, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company a “Non-U.S. Benefit Plan”) has been established, for any period through the date of this Agreement have been timely made or paid in full maintained and administered in all material respects in accordance with its terms and applicable Laws, and if intended to qualify for special tax treatment, meets all the requirements for such treatment, in each case, in all material respects; (ii) all material employer and employee contributions to each Non-U.S. Benefit Plan required by its terms or by applicable Law have been made or, to if applicable, accrued in accordance with generally accepted accounting practices in the extent not applicable jurisdiction; and (iii) each Non-U.S. Benefit Plan required to be made or paid on or before the date of this Agreementregistered has been registered and has been maintained in good standing with applicable regulatory authorities, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Reportall material respects.
Appears in 1 contract
Samples: Business Combination Agreement (Gores Guggenheim, Inc.)
Company Benefit Plans. (a) Section 3.18(aSchedule 4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “Benefit Plan. None of the Benefit Plans are maintained, contributed to or required to be contributed to outside the United States or otherwise covers any employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director service provider of the Company who resides or any works outside of its Subsidiaries, or the United States on behalf of the Company.
(b) As applicable with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company material Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, true and complete and accurate copies of (Ai) each Benefit Plan, including all amendments thereto (and in the case of an unwritten Benefit Plan, a written description thereof), (ii) the current summary plan description and each summary of material modifications thereto, (iii) the most recent Internal Revenue Service determination or opinion letter, (iv) the three (3) most recently filed annual report on reports (Form 5500 filed with the IRS, including 5500) and all schedules thereto; , (Bv) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(asummary annual reports, financial statements and trustee reports, (vi) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any all related trust agreements, insurance contracts, insurance policies contracts or other documents of any funding arrangements; and vehicles, (Evii) any employee handbooks or other material written notices to or from any Governmental Authority employee benefits summaries relating to any material compliance issues in respect of any such Company Benefit Plan.
, (bviii) Neither any actuarial valuations and reports related to any Benefit Plans with respect to the Companythree (3) most recently completed plan years, (ix) for any of its Subsidiaries or any other trade or business Benefit Plan for which nondiscrimination testing is required by applicable Law, the nondiscrimination tests performed under the Code with respect to each such Benefit Plan for the past three (whether or not incorporated3) which would be treated as a single employer with years, (x) all contracts and third party service agreements relating to each Benefit Plan, including, without limitation, service provider agreements, insurance contracts, annuity contracts, investment management agreements, subscription agreements, participation agreements, and recordkeeping agreements, and (xi) all material communications between the Company or any of its Subsidiaries under Section 414 of ERISA Affiliate on the Code maintains or has within one hand, and any Governmental Authority on the other hand, during the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or three (3) a “multiple employer plan” (as defined in Section 4063 years concerning IRS or 4064 of ERISA)DOL audits or investigations by any Governmental Authority.
(c) The Company is in compliance in all material respects with the provisions of ERISA, the Code and other Laws applicable to the Benefit Plans. Each Company Benefit Plan has been maintained, operated and administered, administered in compliance in all material respects, in compliance respects with its terms and with all applicable LawLaws, including ERISA and the Code. No nonexempt Each Benefit Plan, which is an “prohibited transactionemployee pension benefit plan” within the meaning of Section 406 3(2) of ERISA ERISA, and which is intended to meet the qualification requirements of Section 4975 401(a) of the Code, and each trust that is related to a Benefit Plan and intended to be tax exempt under Section 501(a) of the Code, has been determined by the IRS to be qualified under Section 401(a) of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(dexempt from taxation under Section 501(a) As of the date hereofCode, there are no Legal Proceedings pending oras applicable, and, to the Knowledge of the Company, threatened on behalf of nothing has occurred that would adversely affect any such qualification or against any Company Benefit Plan, the assets tax exemption of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company such Benefit Plan or related trust.
(d) The Company has not incurred (whether or not assessed) or is reasonably likely to be subject to any material Tax penalty or other liability under the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act, including under Section 4980H of the Code or with respect to the administration reporting requirements under Section 6055 or operation Section 6056 of such plans, other than routine claims for benefitsthe Code.
(e) No Company All payments under the Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the CompanyPlans that have become due have been made, other than pursuant to Section 4980B of the Code or any similar Lawin all material respects, on a timely basis.
(f) Each Company Neither the Company, nor to the Knowledge of the Company, any fiduciary, trustee or administrator of any Benefit Plan, has engaged in or, in connection with the Transactions, will engage in, any transaction with respect to any Benefit Plan that is intended which would reasonably be likely to be subject any such Benefit Plan, any Merger Sub, the Surviving Company or Acquiror or any of its Affiliates to any material Tax, penalty or liability for a “qualifiedprohibited transaction” under Section 401 406 of ERISA or Section 4975 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualificationCode.
(g) Neither the Company nor any of its ERISA Affiliates has ever maintained, sponsored, participated in, or contributed to (or been obligated to maintain, sponsor, participate in, or contribute to) or incurred any Liability in respect of, and no Benefit Plan is, (i) a plan which is subject to Section 412 of the Code or Section 302 or Title IV of ERISA, (ii) a multiple employer plan as described in Section 413(c) of the Code, or (iii) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (iv) any other program, plan or arrangement in the nature of a pension plan or otherwise providing for post retirement payments and/or benefits to any current or former employee, director or consultant of the Company or any Affiliate thereof. No event or condition has occurred in connection with which the Company or any ERISA Affiliate thereof could be reasonably likely to be subject to any liability (including any material fine, penalty, or excise tax) or Lien with respect to any Benefit Plan under ERISA, the Code or any other applicable Law or under any agreement or arrangement pursuant to or under which the Company or any ERISA Affiliate thereof is required to indemnify any Person against such liability or have any join and several liability.
(h) The Company does not contribute to, is required to contribute to, or has incurred any withdrawal liability (whether complete or partial), within the meaning of Section 4201 of ERISA, to any multiemployer plan, including on account of an ERISA Affiliate.
(i) No Benefit Plan provides retiree or post-employment welfare benefits, including death, insurance or medical benefits, beyond termination of service or retirement, other than coverage mandated by Law and at the sole cost of the applicable retiree or employee.
(j) Except as set forth in Schedule 4.13(j), the execution or delivery and performance of this Agreement, nor Agreement and the consummation of the Transactions will (not, either alone or upon the occurrence of together with any additional or subsequent events) other event(s), (Ai) result in any payment or benefit becoming due to any current or payableformer employee, director, officer, or required to be provided, to any director, employee or individual independent contractor of the Company or any of its SubsidiariesCompany, (Bii) increase the any amount of compensation or value of any benefit or compensation benefits otherwise payable or required to be provided to any such current or former employee, director, employee officer, or individual independent contractorcontractor of the Company, (Ciii) result in the acceleration of the time of payment, funding or vesting or funding of any such benefit benefits, (iv) require any contributions or compensation payments to fund any obligations under any Benefit Plan, or (Dv) except as would not be material result in, from or with respect to any Benefit Plan, to any current or former employee, director, officer or individual independent contractor of the Company and its Subsidiaries taken as a wholeCompany, result either alone or in conjunction with any other payment, event or occurrence, the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of under Section 280G of the Code. No such current or former employee, director, officer or independent contractor of the Company has any “gross up” or indemnification agreements or other assurance of reimbursement for any Taxes under Section 409A or Section 4999 of the Code.
(hk) There are no pending, or to the Knowledge of the Company, threatened audits or investigations by any Governmental Authority involving any Benefit Plan and no pending, or to the Knowledge of the Company, threatened material claims (except for individual claims for benefits payable in the normal operation of the Benefit Plans), suits or proceedings involving any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan, nor, to the Knowledge of the Company, are there any facts which could reasonably be expected to give rise to any material liability in the event of any such audit, investigation, claim, suit or proceeding.
(l) No person is entitled to receive any additional payment (including any tax gross up payment) from Benefit Plan constitutes a “non-qualified deferred compensation plan” within the Company or any meaning of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(im) Each Neither the Company nor any ERISA Affiliate thereof has any legally binding commitment to modify or amend any Benefit Plan that is a “nonqualified deferred compensation (except as required by Law or to retain the tax qualified status of any Benefit Plan). Neither the Company nor any ERISA Affiliate thereof has any legally binding commitment to establish any new benefit plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code, program or arrangement.
(jn) All contributions required to be made to any Company No Benefit Plan by applicable Lawis maintained through a human resources and benefits outsourcing entity, any plan document professional employer organization, or other contractual undertakingsimilar vendor or provider.
(o) No events have occurred and no circumstances exist, including events and/or circumstances related to COVID-19, that have interfered in any material respect with the continuous operation and all premiums due or payable administration of the Benefit Plans. The Company has not taken any action in connection with events and/or circumstances related to COVID-19 with respect to insurance policies funding any Company Benefit Plan, for Plan or the compensation or benefits of any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent employee that was not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Reportordinary course of business.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a3.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “Schedule lists all employee benefit plan” plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), whether or not subject to ERISA ERISA, and (ii) other employment, individual consulting, all bonus, stock option, stock purchase or other equity-basedpurchase, benefitrestricted stock, incentive compensation, profit sharing, savings, retirement, disability, vacationincentive, deferred compensation, severanceretiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all retention, bonus, employment, termination, retention, change of control and other similar fringe, welfare severance or other employee benefit plancontracts or agreements to which Company or any Subsidiary or any of their respective ERISA Affiliates (as hereinafter defined) is a party, programcurrently maintains, agreement, contract, policy contributes to or binding arrangement (whether or not in writing) maintained or contributed to sponsors for the benefit of any current or former employee, individual consultant officer, director or director independent contractor of the Company or any Subsidiary or any of its Subsidiaries, their respective ERISA Affiliates or with respect to for which the Company or any of its Subsidiaries has Subsidiary could otherwise have any current or future Liability material liability or material obligations (all such plans, programs, arrangements, contracts or agreements, whether or not listed in Section 3.11(a) of the Company Disclosure Schedule, collectively, the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the .
(b) The Company has made available to Parent Purchaser true, correct and complete and accurate copies of the following (Aas applicable): (i) the written document evidencing each Company Benefit Plan or, with respect to any such plan that is not in writing, a written description of the material terms thereof, and all amendments, modifications or material supplements to any Company Benefit Plan, (ii) the annual report (Form 5500), if any, filed with the U.S. Internal Revenue Service (“IRS”) for the last two plan years, (iii) the most recently received IRS determination letter, if any, relating to a Company Benefit Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Company Benefit Plan, (v) the most recent annual report on Form 5500 filed summary plan description, if any, for such Company Benefit Plan (or other descriptions of such Company Benefit Plan provided to employees) and all modifications thereto, (vi) all material correspondence with the Department of Labor or the IRS and (vii) any related trust agreements, insurance contracts or documents of any other funding arrangements relating to a Company Benefit Plan. Except as specifically provided in the foregoing documents delivered or made available to Purchaser, there are no amendments to any Company Benefit Plans that have been adopted or approved nor has Company or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Company Benefit Plans. No Company Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside of the United States.
(c) Each Company Benefit Plan has been established, operated and administered in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code. During the six years preceding the date of this Agreement, neither Company nor any of its Subsidiaries has taken any action to take corrective action or make a filing under any voluntary correction program of the IRS, including Department of Labor or any other Governmental Entity with respect to any Company Benefit Plan, and to the Company’s Knowledge no plan defect exists that would qualify for correction under any such program.
(d) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” as defined in Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) and any award thereunder, in each case that is subject to Section 409A of the Code, has since (i) January 1, 2005, been maintained and operated in good faith compliance with Section 409A of the Code and IRS Notice 2005-1, (ii) October 3, 2004, not been “materially modified” (within the meaning of Notice 2005-1) and (iii) December 31, 2008, been in documentary and operational compliance with a reasonable interpretation of Section 409A of the Code. No assets set aside for the payment of benefits under any Nonqualified Deferred Compensation Plan are held outside of the United States, except to the extent that substantially all schedules thereto; of the services to which such benefits are attributable have been performed in the jurisdiction in which such assets are held.
(Be) Section 3.11(e) of the most recent determination letter from the IRS for any Company Disclosure Schedule identifies each Company Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code; Code (C) the plan documents “Qualified Plans”). The IRS has issued a favorable determination letter with respect to each Qualified Plan and summary plan descriptionsthe related trust has not been revoked (nor has revocation been threatened), and to the Company’s Knowledge no circumstances or a written description of events have occurred that would reasonably be expected to adversely affect the terms qualified status of any Company Benefit Qualified Plan that is not in writing; (D) any or the related trust agreements, insurance contracts, insurance policies or other documents increase the costs relating thereto. No trust funding any Plan is intended to meet the requirements of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit PlanCode Section 501(c)(9).
(bf) Neither the Company, None of Company and its Subsidiaries nor any of its Subsidiaries or their respective ERISA Affiliates has, at any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within time during the last six (6) years years, contributed to or been obligated to contribute to any plan that is (1i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Title IV or Section 302 of ERISA, ERISA or Section 412 or 4971 of the Code or Title IV of ERISA, (2ii) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 Multiemployer Plan”) or 4064 a plan that has two or more contributing sponsors at least two of ERISA).
(c) Each Company Benefit Plan has been maintainedwhom are not under common control, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 4063 of ERISA (a “Multiple Employer Plan”); and Section 4975 none of the Code Company and its Subsidiaries nor any of their respective ERISA Affiliates has occurred incurred any liability to a Multiemployer Plan or is reasonably expected to occur with respect to any Company Benefit 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 such Multiemployer Plan or Multiple Employer Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, Company nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its SubsidiariesSubsidiaries sponsors, (B) increase the amount has sponsored or value of has any benefit or compensation otherwise payable or required to be provided obligation with respect to any such directoremployee benefit plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, employee former or independent contractorcurrent employees or beneficiaries or dependents thereof, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of required by Section 280G 4980B of the Code. Company and each of its Subsidiaries have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or medical or life insurance coverage, and no representations or commitments, whether or not written, have been made that would limit Company’s or such Subsidiary’s right to amend, terminate or modify any such benefits.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement hereof, have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreementhereof, have been fully reflected on the consolidated financial statements books and records of Company.
(i) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) result in, cause the vesting, exercisability or delivery of, or increase in the amount or value of, any payment, right or other benefit to any employee, officer, director or other service provider of Company or any of its Subsidiaries, or result in any limitation on the right of Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by Company or any of its Subsidiaries in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code, or otherwise.
(j) There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability (as hereinafter defined) that would be a material liability of Company, its Subsidiaries or any of their ERISA Affiliates following the Closing. Without limiting the generality of the foregoing, neither Company nor any of its ERISA Affiliates has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA.
(k) None of Company and its Subsidiaries nor any of their respective ERISA Affiliates nor any Person now or previously employed by Company, including any fiduciary, has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the Company included Benefit Plans or their related trusts, Company, any of its Subsidiaries, any of their respective ERISA Affiliates or any Person that 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.
(l) There are no pending or, to Company’s Knowledge, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to Company’s Knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Company SEC ReportBenefit Plans, any fiduciaries thereof with respect to their duties to the Company Benefits Plans or the assets of any of the trusts under any of the Company Benefit Plans which could reasonably be expected to result in any material liability of Company or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any Multiemployer Plan, a Multiple Employer Plan, any participant in a Company Benefit Plan, or any other party.
(m) Each individual who renders services to Company or any of its Subsidiaries who is classified by Company or such Subsidiary, as applicable, as having the status of an independent contractor or other non-employee status for any purpose (including for purposes of taxation and tax reporting and under Company Benefit Plans) is properly so characterized.
(n) No deduction of any amount payable pursuant to the terms of any Company Benefit Plan (other than Previously Disclosed incentive stock options granted pursuant to Section 422 of the Code) has been disallowed or is subject to disallowance under Section 162(m) of the Code.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 4.13(a) of the Company Disclosure Letter sets forth a true and complete and accurate list of each material (i) Company Benefit Plan. For purposes of this Agreement a “Company Benefit Plan” is each “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (including “multiemployer plans” as defined in Section 3(37) of ERISA), and any stock ownership, stock purchase, stock option, phantom stock, equity or other equity-based, severance, employment (other than offer letters that do not provide severance benefits or notice periods in excess of 30 days upon termination of the employment relationship), individual consulting, retention, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, employee loan and all other benefit or compensation plans, agreements, programs, policies, Contracts or other arrangements, whether or not subject to ERISA and (ii) other employmentERISA, individual consultingwhich are contributed to, bonusrequired to be contributed to, stock option, stock purchase sponsored by or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change maintained by the Company or any of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to its Subsidiaries for the benefit of any current or former employee, individual consultant officer, director, or director other service provider of the Company or any of its Subsidiaries, Subsidiaries (the “Company Employees”) or under or with respect to which the Company or any of its Subsidiaries has any current liability or future Liability obligation, contingent or otherwise.
(the “Company Benefit Plans”). As of the date hereof, with b) With respect to each material Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent complete and accurate Acquiror copies of (Ai) each Company Benefit Plan and any trust agreement or other funding instrument relating to such plan, (ii) the most recent summary plan description, if any, required under ERISA with respect to such Company Benefit Plan, (iii) the most recent annual report on Form 5500 filed and all attachments with respect to each Company Benefit Plan (if applicable), (iv) the IRSmost recent actuarial valuation (if applicable) relating to such Company Benefit Plan, including all schedules thereto; (Bv) the most recent determination letter from or opinion letter, if any, issued by the IRS for Internal Revenue Service with respect to any Company Benefit Plan, and (vi) any non-routine correspondence with any Governmental Authority.
(c) Except as would not reasonably be expected to be individually or in the aggregate material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Benefit Plan has been established, maintained, funded and administered in compliance with its terms and all applicable Laws, including ERISA and the Code and all contributions, premiums or other payments that are due with respect to any Company Benefit Plan that have been made and all such amounts due for any period ending on or before the Closing Date have been made or properly accrued and reflected in the Company’s financial statements to the extent required by GAAP;
(ii) each Company Benefit Plan which is intended to qualify under be qualified within the meaning of Section 401(a) of the Code is so qualified and (A) has received a favorable determination or opinion letter as to its qualification prior to the date of this Agreement or (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, and nothing has occurred, whether by action or failure to act, that could reasonably be expected to adversely affect such qualification;
(iii) (A) no event has occurred and no condition exists that would subject the Company or its Subsidiaries, either directly or by reason of their affiliation with any member of their “Controlled Group” (defined as any organization which is a member of a controlled group of organizations within the meaning of Sections 414(b), (c), (m) or (o) of the Code; ), to any tax, fine, lien, penalty or other liability imposed by ERISA, the Code or other applicable Law, (B) there do not exist any pending or, to the Company’s knowledge, threatened Actions (other than routine claims for benefits), audits or investigations with respect to any Company Benefit Plan, and (C) there have been no “prohibited transactions” within the plan documents and summary plan descriptions, or a written description meaning of Section 4975 of the terms Code or Sections 406 or 407 of ERISA and not otherwise exempt under Section 408 of ERISA and no breaches of fiduciary duty (as determined under ERISA) with respect to any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.;
(biv) Neither except as set forth on Schedule 4.13(c)(iv), neither the Company, Company nor any of its Subsidiaries has incurred any current or any other trade projected liability in respect of post-employment or business (whether post-retirement or not incorporated) which would be treated as a single employer with post-termination health, medical or life insurance benefits for current, former or retired employees or owners or service providers of the Company or any of its Subsidiaries Subsidiaries, except as required to avoid an excise tax under Section 414 4980B of the Code maintains and neither the Company nor any of its Subsidiaries has incurred (whether or not assessed) any Tax or other penalty with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable, or under Section 4980B, 4980D or 4980H of the Code;
(v) (A) neither the Company nor any of its Subsidiaries sponsored or was required to contribute to, at any point during the six year period prior to the date hereof, or otherwise has within the last six (6) years contributed any current or contingent liability or obligation under or with respect to (1) an a multiemployer pension plan (as defined in Section 3(37) of ERISA or Section 4001(a)(3) of the Code) (a “employee pension Multiemployer Plan”), (2) a “defined benefit plan” (as defined in Section 3(23(35) of ERISA), ) or any other plan that is or was subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or Section 412 or Section 4971 of the Code, (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 210 of ERISA and or Section 4975 413(c) of the Code has occurred Code), or is (4) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), (B) no circumstance or condition exists that would reasonably be expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor an actual obligation of the Company or any of its Subsidiaries, (B) increase the amount or value Subsidiaries to pay money on account of any benefit Multiemployer Plan or compensation otherwise payable or required other pension plan that is subject to be provided to any such director, employee or independent contractor, Title IV of ERISA and that is maintained by an ERISA Affiliate of the Company and (C) neither the Company nor any of its Subsidiaries has any current or contingent liability or obligation on account of at any time being considered a single employer under Section 414 of the Code with any other Person;
(vi) other than as set forth in the Limited Partnership Agreement of Topco, neither the execution and delivery of this Agreement by the Company nor the consummation of the Merger will (whether alone or in connection with any subsequent event(s)) (A) result in the acceleration of the time of paymentacceleration, funding, vesting or funding creation of any such benefit rights of any current or compensation former director, officer, employee, consultant or (D) except as would not be material to other service provider of the Company and or its Subsidiaries taken as a whole, to payments or benefits or increases in any payments or benefits (including any loan forgiveness) under any Company Benefit Plan or otherwise (B) result in the payment to any current or former employee, officer, director, consultant or other service provider of the Company or its Subsidiaries of any severance pay or money or other property, or any increase in severance pay upon any termination of employment or service;
(vii) (A) no amount or benefit that couldcould be, individually or has been, received (whether in combination with cash or property or the vesting of property or the cancellation of indebtedness) by any current or former employee, officer, director, shareholder, consultant or other payment service provider of the Company, any of its Subsidiaries or benefit, constitute an their Affiliates who is a “excess parachute paymentdisqualified individual” within the meaning of Section 280G of the Code could reasonably be expected to be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A consummation of the Code.transactions contemplated by this Agreement (whether alone or in connection with any subsequent event(s)) and (B) neither the Company nor any of its Subsidiaries maintains any obligations to gross-up or reimburse any individual for any Tax or related interest or penalties incurred by such individual, including under Sections 409A or 4999 of the Code or otherwise;
(iviii) Each (A) each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in within the meaning of Section 409A(d)(1) of the Code) that is subject to Code has been operated in all material respects in good faith compliance with Section 409A of the Code since January 1, 2005 or its inception (whichever is in compliance in later), and all material respects with applicable regulations and notices issued thereunder and (B) no Company Benefit Plan or award thereunder provides to any “service provider” (within the meaning of Section 409A of the Code.) of the Company or its Subsidiaries any compensation or benefits which has subjected or could reasonably be expected in the future to subject such service provider to gross income inclusion or additional Tax pursuant to Section 409A(a)(1) of the Code; and
(jix) All without limiting the generality of Sections 4.13(a) through Section 4.13(c) above, with respect to each Company Benefit Plan that is subject to the Laws of a jurisdiction other than the United States (whether or not United States Law also applies) (a “Foreign Plan”): (A) all employer and employee contributions to each Foreign Plan required by Law or by the terms of such Foreign Plan have been timely made, or, if applicable, accrued in accordance with normal accounting practices; (B) each Foreign Plan required to be made registered has been registered and has been maintained in good standing with applicable regulatory authorities; and (C) no Foreign Plan is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA) or has any Company Benefit Plan by applicable Law, any plan document unfunded or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Reportunderfunded liabilities.
Appears in 1 contract
Samples: Merger Agreement (Conyers Park II Acquisition Corp.)
Company Benefit Plans. (a) Section 3.18(aSchedule 5.14(a) of the Company Disclosure Letter sets forth a true and complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (including “multiemployer plans” as defined in Section 3(37) of ERISA), and any material stock purchase, stock option, severance, employment (other than offer letters that do not provide severance benefits or notice periods in excess of thirty (30) days upon termination of the employment relationship), individual consulting, retention, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, employee loan and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA, which are contributed to, sponsored by or maintained by the Company, an ERISA and (ii) other employmentAffiliate, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change any of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to their respective Subsidiaries for the benefit of any current or former employee, individual officer, director or consultant or director of the Company Company, an ERISA Affiliate or any of its Subsidiaries, or with respect to which the Company or any of its their respective Subsidiaries has any current or future Liability (the “Company Employees”) (each a “Company Benefit PlansPlan”). As .
(b) With respect to each material Company Benefit Plan set forth on Schedule 5.14(a), the Company has delivered or made available to Acquiror copies of (i) each Company Benefit Plan and any trust agreement or other funding instrument relating to such plan, (ii) the date hereofmost recent summary plan description, if any, required under ERISA with respect to each such Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (Aiii) the most recent annual report on Form 5500 filed and all attachments with respect to each Company Benefit Plan (if applicable), (iv) the IRSmost recent actuarial valuation (if applicable) relating to such Company Benefit Plan, including all schedules thereto; (Bv) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur Internal Revenue Service with respect to any Company Benefit Plan, and (vi) where the Company Benefit Plan has not been reduced to writing, a written summary of all material plan terms.
(c) Except as would not, individually or in the aggregate, be material to the Company and its Subsidiaries, taken as a whole, (i) each Company Benefit Plan and all related trusts, insurance contracts and funds have been administered in compliance with its terms and all applicable Laws, including ERISA and the Code, and (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Company’s financial statements to the extent required by GAAP.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that which is intended to be “qualified” under qualified within the meaning of Section 401 401(a) of the Code (A) has received a favorable determination or opinion letter from as to its qualification, or (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the IRS plan sponsor and is valid as to such effect and the adopting employer, and, to the knowledge of the Company, nothing has occurred occurred, whether by action or is failure to act, that could reasonably be expected to cause the loss of such qualification.
(ge) Neither Except as would not, individually or in the execution aggregate, be material to the Company and its Subsidiaries, taken as a whole, with respect to any Company Benefit Plan, no event has occurred and no condition exists that would subject the Company or delivery its Subsidiaries, either directly or by reason of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of their affiliation with any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be providedERISA Affiliate, to any directorTax, employee fine, lien, penalty or independent contractor other liability imposed by ERISA, the Code, the applicable requirements of the Patient Protection and Affordable Care Act of 2010, or other applicable Law. There are no Actions pending or, to the knowledge of the Company, threatened Actions, with respect to any Company Benefit Plan (other than claims for benefits in the ordinary course of business) or any administrator or fiduciary thereof, and to the knowledge of the Company, no fact or circumstance exists that would reasonably be expected to give rise to any such Action.
(f) Except as would not, individually or in the aggregate, be material to the Company and its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries has incurred any current or projected liability in respect of post-employment or post-retirement health, medical or life insurance benefits for current, former or retired employees of the Company or any of its Subsidiaries, except as required to avoid an excise tax under Section 4980B of the Code or otherwise except as may be required pursuant to any other applicable Law.
(Bg) increase The Company and its Subsidiaries have not sponsored, or were not required to contribute to, at any point during the amount or value six (6) year period prior to the date hereof, and do not have any liability with respect to (including any liability on account of any ERISA Affiliates) (i) a defined benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractorplan, (Cii) result a multiemployer pension plan (as defined in Section 3(37) of ERISA or Section 4001(a)(3) of the Code) (a “Multiemployer Plan”) or other pension plan, in each case, that is subject to Section 302 or Title IV of ERISA or Section 412 or Section 4971 of the Code or (iii) any voluntary employees’ beneficiary association (within the meaning of Section 501(c)(9) of the Code).
(h) Except as would not, individually or in the acceleration of the time of paymentaggregate, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries Subsidiaries, taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) within the meaning of the Code) that is subject to Section 409A of the Code is has at all times been administered, operated and maintained in material compliance with the requirements of Section 409A of the Code. The Company and its Subsidiaries have no obligation to make a “gross-up” or similar payment in all material respects with respect of any Taxes that may become payable under Section 409A of the Code.
(ji) All contributions required Neither the execution and delivery of this Agreement by the Company nor the consummation of the Mergers will (whether alone or in connection with any subsequent event(s)) (i) result in the acceleration, vesting or creation of any rights of any director, officer or employee of the Company or its Subsidiaries to be made to payments or benefits or increases in any payments or benefits (including any loan forgiveness) under any Company Benefit Plan or (ii) result in notice (or pay in lieu) or severance pay or any increase in notice (or pay in lieu) or severance pay upon any termination of employment.
(j) No amount or benefit that could be, or has been, received (whether in cash or property or the vesting of property or the cancellation of indebtedness) by applicable Lawany current or former employee, any plan document officer or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements director of the Company included in or any Subsidiary of the Company SEC Reportwho is a “disqualified individual” within the meaning of Section 280G of the Code could reasonably be expected to be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) as a result of the consummation of the Transactions. Neither the Company nor any of its Subsidiaries have any obligation to make a “gross-up” or similar payment in respect of any Taxes that may become payable under Section 4999 of the Code.
Appears in 1 contract
Samples: Merger Agreement (GigCapital4, Inc.)
Company Benefit Plans. (a) Section 3.18(aSchedule 4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material Company Benefit Plan and specifies whether it is a U.S. Plan or an International Plan.
(b) With respect to each Company Benefit Plan set forth on Schedule 4.13(a), the Company has delivered or made available to Buyer or its representatives copies of, (or a description, if such plan is not written) and all amendments thereto, to the extent applicable, (i) “such Company Benefit Plan and any trust agreements, insurance contracts or other funding arrangements and amendments thereto relating to such plan, (ii) the current summary plan description and all summaries of material modifications thereto for such Company Benefit Plan for which such summary plan description is required, (iii) the annual report on Form 5500 for the most recently completed plan year and all attachments thereto filed with the Internal Revenue Service with respect to such Company Benefit Plan, (iv) the most recent determination or opinion letter, if any, issued by the Internal Revenue Service with respect to such Company Benefit Plan, (v) the most recently prepared actuarial report and financial statement, (vi) all material, non-routine correspondence relating thereto received from or provided to the IRS, the Department of Labor, the PBGC or any other Governmental Authority since January 1, 2017 and (vii) all current employee benefit plan” handbooks, manuals and written policies.
(c) Except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole: (i) each Company Benefit Plan has been administered and maintained in compliance with its terms and all applicable Laws, including ERISA and the Code; (ii) no action, suit, investigation, audit, proceeding or claim (or any basis therefor other than routine claims for benefits) is pending against or involves, or to the knowledge of the Company, is threatened against or threatened to involve, any Company Benefit Plan before any arbitrator or Governmental Authority, including the IRS, the Department of Labor or the PBGC; (iii) all contributions, premiums and payments required to be made with respect to any Company Benefit Plan on or before the date hereof have been made, and all contributions, premiums and payments for any period ending on or before the Closing Date that are not due are properly accrued to the extent required to be accrued under applicable accounting principles; (iv) each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code (A) has received a favorable determination or opinion letter as to its qualification, (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (C) has time remaining under applicable Laws and related guidance to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter within the remedial amendment period; and (v) each trust created under any such Company Benefit Plan is exempt from Tax under Section 501(a) of the Code and has been so exempt since its creation.
(d) Except as set forth on Schedule 4.13(d), no Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(33(37) of ERISA)) (a “Multiemployer Plan”) or other pension plan, whether or not in each case, that is subject to Title IV of ERISA and neither the Company nor any of its ERISA Affiliates has sponsored or contributed to or been required to contribute to a Multiemployer Plan or other pension plan subject to Title IV of ERISA at any time within the previous six (6) years.
(e) Neither the Company nor any of its ERISA Affiliates has, within the previous six (6) years, incurred any liability on account of a “complete withdrawal” or a “partial withdrawal” (within the meaning of Sections 4203 and 4205 of ERISA, respectively) from any Multiemployer Plan and, to the Company’s knowledge, no circumstances exist that would reasonably be expected to give rise to any such withdrawal (including as a result of the transactions contemplated by this Agreement).
(f) Except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, with respect to the Company Benefit Plans, (i) as of the date hereof and since January 1, 2017, no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the knowledge of the Company, threatened, and (ii) other employmentto the knowledge of the Company, individual consultingno facts or circumstances exist that would reasonably be expected to give rise to any such actions, bonussuits or claims.
(g) With respect to any Company Benefit Plan covered by Subtitle B, stock optionPart 4 of Title I of ERISA or Section 4975 of the Code, stock purchase no non-exempt prohibited transaction has occurred that has caused or other equitywould reasonably be expected to cause the Company to incur any material liability under ERISA or the Code.
(h) The Company does not have any current or projected liability for, and no Company Benefit Plan provides or promises, any post-basedemployment or post-retirement medical, benefit, incentive compensation, profit sharing, savings, retirementdental, disability, vacationhospitalization, deferred compensation, severance, termination, retention, change of control and other life or similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement benefits (whether insured or not in writingself-insured) maintained or contributed to for the benefit of any current or former employeeService Provider (other than coverage mandated by applicable Law, individual consultant or director including COBRA).
(i) As of the date hereof, no Key Employee has indicated in writing to the Company that he or any she intends to resign or retire as a result of its Subsidiaries, the transactions contemplated by this Agreement or otherwise within one (1) year after the Closing Date.
(j) Except with respect to which increases in healthcare costs in the ordinary course of business, since January 1, 2020, there has been no amendment to, written interpretation of or announcement by the Company or any of its Subsidiaries has relating to, or change in employee participation or coverage under, any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any broad-based Company Benefit Plan that is intended would materially increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the most recent fiscal year ended prior to qualify the date hereof.
(k) The Company has no obligation to gross-up, indemnify or otherwise reimburse any current or former Service Provider for any Tax incurred by such Service Provider, including under Section 401(a) 409A, 457A or 4999 of the Code; .
(Cl) Neither the plan documents and summary plan descriptions, or a written description execution of this Agreement nor the consummation of the terms of transactions contemplated hereby (either alone or together with any Company Benefit Plan that is not in writing; other event) will (Di) entitle any related trust agreements, insurance contracts, insurance policies current or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating former Service Provider to any material compliance issues in respect payment or material benefit, including any bonus, retention, severance or retirement payment or benefit, (ii) accelerate the time of payment or vesting or trigger any such Company Benefit Plan.
payment or funding (bthrough a grantor trust or otherwise) Neither of compensation or benefits under, or materially increase the Company, any of its Subsidiaries amount payable or trigger any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust obligation under any Company Benefit Plan, (iii) limit or restrict the right of any Company or the plan sponsorSurviving Corporation, plan administrator to merge, amend or any fiduciary or terminate any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (Div) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of would not be deductible under Section 280G of the Code.
Code (h) No person is entitled other than with respect to receive any additional payment (including any tax gross up payment) from the Company or benefit pursuant to an arrangement entered into by Buyer or any of its Subsidiaries as a result of pre-Closing Affiliates that is not disclosed to the imposition of additional taxes Company within the period required under Section 4999 or Section 409A of the Code6.8.)
(im) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) within the meaning of the Code) that is subject to Section 409A or 457A of the Code is in compliance complies in all material respects with Section 409A or Section 457A (as applicable) of the Code.
(jn) All contributions required Except as would not reasonably be expected to be made material to any the Company Benefit and its Subsidiaries, taken as a whole, each International Plan by (i) has been maintained in compliance with its terms and applicable Law, any plan document or other contractual undertaking(ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and all premiums due (iii) if required, to any extent, to be funded, book-reserved or payable secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with respect to insurance policies funding any Company Benefit Plan, for any period through applicable accounting principles.
(o) Each Option was granted with an exercise price that was not less than the fair market value of a Common Share on the date of this Agreement have been timely made or paid in full in all grant and, except as would not reasonably be expected to be material respects or, to the extent not required Company and its Subsidiaries, taken as a whole, in accordance with, or pursuant to be made or paid compliant reliance on or before the date of this Agreementan exemption from, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Reportapplicable securities Law.
Appears in 1 contract
Samples: Merger Agreement (V F Corp)
Company Benefit Plans. (a) Section 3.18(a) of the Company Disclosure Letter Schedule 4.13 sets forth a complete and accurate list of each material (i) material, written “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether and any other material written plan, policy or not subject to ERISA and (ii) other employmentprogram providing severance pay, individual consultingsalary continuation, bonus, stock option, stock purchase or other equity-based, benefit, incentive equity compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer or employee, individual consultant which are maintained, sponsored or director of contributed to or by the Company or any of its Subsidiaries, or with respect to Subsidiaries and under which the Company or any of its Subsidiaries has any current material obligation or future Liability liability other than any plan, policy or program that is required by applicable Law or regulation (the each a “Company Benefit PlansPlan”). As of the date hereof, with .
(b) With respect to each Company Benefit PlanPlan identified on Schedule 4.13, the Company has delivered or made available to Buyer or its representatives copies of, to the extent applicable, the (i) such Company has made available Benefit Plan and any trust agreement relating to Parent complete and accurate copies of such plan, (Aii) the most recent summary plan description for such Company Benefit Plan for which such summary plan description is required, (iii) the most recent actuarial report covering such Company Benefit Plan, (iv) the three most recent annual report reports on Form 5500 and all attachments thereto filed with the IRS, including all schedules thereto; Internal Revenue Service with respect to such Company Benefit Plan and any comparable reports required under the laws of any jurisdiction outside of the United States and (Bv) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies Internal Revenue Service or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating with respect to any material compliance issues in respect of any such Company Benefit Plan.
(bc) Neither Except as would not reasonably be expected to be material to the CompanyCompany and its Subsidiaries, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated taken as a single employer whole: (i) each Company Benefit Plan has been administered in accordance with its terms and all applicable Laws, including ERISA and the Code; (ii) all contributions required to be made with respect to any Company Benefit Plan on or any of its Subsidiaries under Section 414 of before the Code maintains or has within the last six date hereof have been made; (6iii) years contributed each Company Benefit Plan which is intended to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” be qualified within the meaning of Section 4001(a)(3401(a) of ERISA the Code (A) has received a favorable determination or opinion letter as to its qualification, (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (3C) has time remaining under applicable Laws and related guidance to apply for a “multiple employer plan” determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter within the remedial amendment period; (as defined in Section 4063 or 4064 of ERISA).
(civ) Each each Company Benefit Plan maintained outside of the United States that is intended or required to be qualified, approved or registered is so qualified, approved or registered and has been maintained, operated maintained in good standing with applicable Government Authorities; and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “(v) no transaction prohibited transaction” within the meaning of by Section 406 of ERISA and no “prohibited transaction” under Section 4975 4975(c) of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As Except as set forth on Schedule 4.13, no Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other pension plan, in each case, that is subject to Title IV of ERISA and neither the Company nor any of its Subsidiaries in the past six years has sponsored or contributed to or been required to contribute to a Multiemployer Plan, another pension plan subject to Title IV of ERISA or subject to the funding requirements of Section 302 of ERISA or Section 412 of the date hereofCode, there are no Legal Proceedings pending or, to the Knowledge or a “multiple employer plan” as defined in Section 210(a) of ERISA or Section 413(c) of the CompanyCode.
(e) Except as set forth on Schedule 4.13, threatened on behalf no Company Benefit Plan is, or at any time was, funded through a “welfare benefit fund” as defined in Section 419(e) of or against the Code, and no benefits under any Company Benefit PlanPlan are or at any time have been provided through a voluntary employees’ beneficiary association (within the meaning of subsection 501(c)(9) of the Code) or a supplemental unemployment benefit plan (within the meaning of Section 501(c)(17) of the Code).
(f) With respect to each group health plan (as defined in Section 733(a) of ERISA benefiting any current or former employee of the Company or any of its Subsidiaries that is subject to Section 4980B of the Code, or was subject to Section 162(k) of the Code, the assets Company and each Subsidiary has complied in all material respects with (i) the continuation coverage requirements of any trust Section 4980B of the Code and Section 162(k) of the Code, as applicable, and Part 6 of Subtitle B of Title I of ERISA, and (ii) the Health Insurance Portability and Accountability Act of 1996, as amended.
(g) No Company Benefit Plan provides continuation coverage for welfare benefits, including, without limitation, death or medical benefits, beyond termination of service or retirement other than (i) coverage mandated by law or through the end of the month in which such termination of service or retirement occurs, (ii) death or retirement benefits under any Company Benefit Plan, or (iii) deferred compensation benefits reflected on the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor books of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the CodeSubsidiary.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a group health plan (as defined in Section 733(a) of ERISA) (i) has at all times complied in all material respects with the applicable health insurance reform requirements added to Section 715 of ERISA by the Patient Protection and Affordable Care Act and the guidance issued thereunder (“PPACA”), and (ii) has since January 1, 2015, accurately and timely complied in all material respects with the mandatory employer reporting requirements of Section 6055 and Section 6056 of PPACA. Neither the Company nor any of its Subsidiaries are reasonably expected to owe any excises taxes set forth in Section 4980H of the Code for any month after December 2014 and ending with the month in which Closing will occur.
(i) Each “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that with respect to which the Company or any of its Subsidiaries is subject to a “service recipient” (within the meaning of Section 409A of the Code) has been operated since January 1, 2005, in all material respects in compliance with the applicable provisions of Section 409A of the Code is in compliance and the Treasury regulations and other official guidance issued thereunder (collectively, “Section 409A”), and has been since January 1, 2009, in all material respects in documentary compliance with the applicable provisions of Section 409A 409A. Neither the Company nor any of its Subsidiaries has any indemnity obligation for any taxes or interest that has been or could in the Code.future be imposed or accelerated under Section 409A.
(j) All contributions required Except as would not reasonably be expected to be made material to any the Company Benefit Plan by applicable Lawand its Subsidiaries, any plan document or other contractual undertakingtaken as a whole, and all premiums due or payable with respect to insurance policies funding any the Company Benefit PlanPlans, for any period through (i) as of the date of this Agreement have been timely made hereof, no actions, suits or paid claims (other than routine claims for benefits in full in all material respects the ordinary course) are pending or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements knowledge of the Company included in Company, threatened, and (ii) to the Company SEC Reportknowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims.
Appears in 1 contract
Samples: Merger Agreement (Meritor Inc)
Company Benefit Plans. (a) Section 3.18(aSchedule 4.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) any other employment, individual consultingretention, bonustermination, stock optionseverance, stock purchase incentive equity or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severancechange in control, termination, retention, change of control and other similar fringe, welfare bonus or other employee benefit plan, program, agreement, contractarrangement, policy or binding arrangement (whether program providing compensation or not in writing) maintained or contributed benefits to for the benefit of any current or former employeedirector, individual consultant officer, employee or director other service provider of the Company (or after the Reorganization, Newco) or any of its the Company Subsidiaries, or with respect which is maintained, sponsored, contributed to or required to be contributed to by the Company (or after the Reorganization, Newco) or any of the Company Subsidiaries or under which the Company (or after the Reorganization, Newco) or any of its the Company Subsidiaries has or could reasonably be expected to have any current obligation or future Liability liability (including on account of an ERISA Affiliate) (collectively, whether or not material, the “Company Benefit Plans”). As of the date hereof, with .
(b) With respect to each material Company Benefit Plan, to the extent applicable, the Company has (and after the Reorganization, Newco will have) made available to Parent complete or its representatives copies of: (i) all current plan documents and accurate copies of all amendments thereto; (Aii) all trust agreements, funding arrangements or insurance contracts; (iii) the most recent summary plan description; (iv) the most recent annual report on Form 5500 filed with the IRS, including and all schedules theretoattachments thereto (if applicable); (Bv) the most recent determination letter from or opinion letter, if any, issued by the IRS for Internal Revenue Service; and (vi) any non-routine correspondence with any Governmental Entity dated during the past four (4) years. In addition, the Company has (and after the Reorganization, Newco will have) provided to Parent or its representatives a schedule summarizing all outstanding retention, change in control bonuses, change in control severance or other similar payment obligations of the Group Companies that is true and accurate in all material respects as of no earlier than thirty (30) days prior to the date hereof (the “Retention Award Summary”) and the Company has (and after the Reorganization, Newco will have) made available to Parent or its representatives a copy of each Company Benefit Plan that is an agreement listed in the Retention Award Summary.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole: (i) each Company Benefit Plan has been administered in accordance with its terms and all applicable Law, including ERISA and the Code; (ii) all contributions (including all employer contributions and employee salary reduction contributions) or payments required to be made under or with respect to any Company Benefit Plan have been made by the due date thereof (including any valid extension); and (iii) no non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code) has occurred or, to the Knowledge of the Company (and after the Reorganization, Newco), is reasonably expected to occur with respect to any Company Benefit Plan. Each Company Benefit Plan which is intended to qualify be qualified within the meaning of Section 401(a) of the Code: (A) has received a favorable determination or opinion letter as to its qualification; or (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, and nothing has occurred and to the Knowledge of the Company (and after the Reorganization, Newco), no circumstances exist that could reasonably be expected to result in the loss of the qualification of such plan under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(bd) Neither the Company, Company nor any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or ERISA Affiliates has within the last prior six (6) years contributed sponsored, been obligated to contribute to, or could reasonably be expected to incur any current or contingent liability in respect of: (1i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), ) subject to Section 302 Title IV of ERISA, Section 412 of the Code or Title IV Section 302 of ERISA, ERISA (2) a including any “multiemployer plan” within the meaning of Section 4001(a)(3(3)(37) of ERISA or ERISA); (3ii) a “multiple employer plan” (as defined in Section 4063 413(c) of the Code; or 4064 of ERISA).
(ciii) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt a “prohibited transactionmultiple employer welfare arrangement” within the meaning of Section 406 3(40) of ERISA and Section 4975 of ERISA.
(e) Except as would not, individually or in the Code has occurred or is aggregate, reasonably be expected to occur be material to the Group Companies, taken as a whole, with respect to any the Company Benefit Plan.
Plans or their administrators or fiduciaries: (di) As of no actions, suits or claims (other than routine claims for benefits in the date hereof, there ordinary course) are no Legal Proceedings pending or, to the Knowledge of the CompanyCompany (and after the Reorganization, threatened on behalf of or against any Company Benefit PlanNewco), the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect threatened; and (ii) to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees Knowledge of the CompanyCompany (and after the Reorganization, other than pursuant Newco), no facts or circumstances exist that could reasonably be expected to Section 4980B of the Code give rise to any such actions, suits or any similar Lawclaims.
(f) Each None of the Company Benefit Plan that is intended to Plans provides for, and the Group Companies have no liability in respect of, post-employment or retiree health, life insurance or other welfare benefits or coverage for any current or former participant or any beneficiary of any current or former participant, except as may be “qualified” required under Section 401 the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or similar state or other applicable Law and at the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss sole expense of such qualificationparticipant or the participant’s beneficiary.
(g) Neither the execution or and delivery of this Agreement, Agreement nor the consummation of the Transactions will (will, either alone or upon the occurrence of in connection with any additional or subsequent events) other event(s): (Ai) result in any payment or benefit becoming due or payable, or required to be provided, to any directorcurrent or former employee, employee officer, contractor or independent contractor director of the Company (or after the Reorganization, Newco) or any of its Subsidiaries, the Company Subsidiaries or under any Company Benefit Plan; (Bii) increase the amount of compensation or value of any benefit or compensation benefits otherwise payable or required to be provided to any such directorcurrent or former employee, employee officer, contractor or independent contractordirector of the Company (or after the Reorganization, Newco) or any of the Company Subsidiaries or under any Company Benefit Plan; (Ciii) result in the acceleration of the time of payment, funding or vesting or funding of any such benefit benefits to any current or compensation former employee, officer, contractor or director of the Company (or after the Reorganization, Newco) or any of the Company Subsidiaries or under any Company Benefit Plan; or (Div) except as would not be material to the Company and its Subsidiaries taken as a whole, result in any limitation on the payment of right to merge, amend or terminate any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the CodeCompany Benefit Plan.
(h) No person is entitled Neither the Company (nor after the Reorganization, Newco) nor any of the Company Subsidiaries maintain any obligations to receive gross-up or reimburse any additional payment (including individual for any tax gross up payment) from the Company or any of its Subsidiaries as a result related interest or penalties incurred by such individual, including under Sections 409A or 4999 of the imposition of additional taxes under Section 4999 Code or Section 409A of the Codeotherwise.
(i) Each Company Benefit Plan that which is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is has been established, operated and maintained in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertakingCode in all material respects, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Reportapplicable regulations and notices issued thereunder.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material (i) Company Benefit Plan. For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) or any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former manager, director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority. With respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent Bright Lights, to the extent applicable, true, complete and accurate correct copies of (A) the most recent annual report on Form 5500 filed with the IRSsuch Company Benefit Plan (or, including if not written a written summary of its material terms) and all schedules plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto; , (B) the most recent determination letter from the IRS for summary plan descriptions, including any Company Benefit Plan that is intended to qualify under Section 401(a) summary of the Code; material modifications, (C) the plan documents and summary plan descriptions, or a written description of three (3) most recent annual reports (Form 5500 series) filed with the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices IRS with respect to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2D) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA most recent actuarial report or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each other financial statement relating to such Company Benefit Plan has been maintainedPlan, operated and administered(E) the most recent determination or opinion letter, in all material respectsif any, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within issued by the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur IRS with respect to any Company Benefit Plan.
Plan and any pending request for such a determination letter, and (dF) As of the date hereof, there are no Legal Proceedings pending or, all material non-ordinary course communications received from or sent to the Knowledge IRS, the Pension Benefit Guaranty Corporation, the Department of Labor or any other applicable Governmental Authority relating to the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Business Combination Agreement (Bright Lights Acquisition Corp.)
Company Benefit Plans. (a) Section 3.18(a) of the Company Disclosure Letter Schedule 4.13 sets forth a complete and accurate list of each material (i) pension, retirement, profit sharing, savings, deferred compensation, cash or equity incentive, health or welfare or fringe benefit plan including but not limited to any material “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) and any other material plan, whether policy, program or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase arrangement providing compensation or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its Subsidiaries, and under which the Company or any of its Subsidiaries has any obligation or liability (each a “Company Benefit Plan”).
(b) With respect to each Company Benefit Plan, the Company has made available to Buyer copies of (i) each Company Benefit Plan and any trust agreement relating to such plan, with all material amendments thereto, (ii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required, (iii) the three most recent annual reports on Form 5500 and all attachments thereto filed with the Internal Revenue Service with respect to such Company Benefit Plan (if applicable), (iv) the most recent determination or opinion letter, if any, issued by the Internal Revenue Service with respect to any Company Benefit Plan, and (v) to the extent applicable, annual compliance tests for the last three plan years with respect to such Company Benefit Plan.
(c) Except as would not reasonably be expected to result in material loss or liability: (i) each Company Benefit Plan has been administered in accordance with its terms and all applicable Laws, including ERISA and the Code; (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been timely made; and (iii) each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code (A) has received a favorable determination or opinion letter as to its qualification and there are no circumstances or events which have occurred that are reasonably expected to result in disqualification of such plan, (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (C) has time remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter.
(d) Except as set forth on Schedule 4.13, no Company Benefit Plan is a (i) multiemployer plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”), (ii) single employer or multiple employer pension plan that is subject to Title IV of ERISA or Section 412 of the Code (a “Pension Plan”), or (iii) plan program or arrangement that provides post-retirement medical or life insurance coverage, other than as required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law or for the duration of the calendar month in which the termination of employment occurs. Without limiting the generality of the foregoing, neither the Company nor any of its Subsidiaries or ERISA Affiliates has sponsored, maintained, contributed to, participated in or been required to contribute to or participate in a Multiemployer Plan or Pension Plan at any time within the previous six (6) years with respect to which the Company or any of its Subsidiaries has could reasonably be expected to have any current material loss or future Liability liability.
(the “Company Benefit Plans”). As of the date hereofe) Except as would not reasonably be expected to result in material loss or liability, with respect to each the Company Benefit PlanPlans, (i) no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the extent applicableknowledge of the Company, threatened, and (ii) to the Company has made available knowledge of the Company, no facts or circumstances exist that would reasonably be expected to Parent complete and accurate copies give rise to any such actions, suits or claims. To the knowledge of (A) the most recent annual report on Form 5500 filed with the IRSCompany, including all schedules thereto; (B) the most recent determination letter from the IRS for any no Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, audit or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from investigation by any Governmental Authority relating to any material compliance issues in respect Authority, including without limitation the Department of any such Company Labor, Internal Revenue Service, Pension Benefit PlanGuaranty Corporation or Securities and Exchange Commission.
(bf) Neither the CompanyExcept as would not reasonably be expected to result in material loss or liability, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with each employee, consultant and leased employee who performs services for the Company or any of its Subsidiaries under Section 414 of the Code maintains has been properly classified as a common law employee, independent contractor or has within the last six leased employee at all times for all purposes.
(6g) years contributed to (1) an Each Company Benefit Plan and any other plan, program, policy or arrangement that provides for “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plannonqualified deferred compensation” within the meaning of Section 4001(a)(3409A of the Code and the regulations and other guidance promulgated thereunder (“Section 409A”) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan is and has at all relevant times been maintainedoperated, operated and administeredsince January 1, 2009 been documented, in all material respects, respects in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of or exemption from Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.409A.
(dh) As of the date hereofExcept as set forth on Schedule 4.13(h), there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of neither the Company or nor any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided Subsidiaries is a party to any such directoragreement, employee contract, arrangement, or independent contractorplan that has resulted or would result, (C) result separately or in the acceleration of the time of paymentaggregate, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section Code Sections 280G of the Code.
or 4999 (h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any corresponding provision of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 state, local, or Section 409A of the Codeforeign tax law).
(i) Each Company Benefit Except as would not reasonably be expected to result in material loss or liability, each Non-U.S. Plan that is a “nonqualified deferred compensation plan” (as defined has been established, operated, funded, maintained, administered, registered and qualified in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is accordance with all applicable Laws and in compliance in all material respects accordance with Section 409A of the Codeits terms.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a5.13(a) of the Company Disclosure Letter sets forth a true and complete and accurate list of each Company Benefit Plan, indicating which Company Benefit Plans are PEO Sponsored Plans. For purposes of this Agreement, “Company Benefit Plan” means each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and any stock purchase, stock option, equity compensation, severance, retirement, employment, individual consulting, retention, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, employee loan and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA and ERISA, in each case, (iia) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or which are contributed to (or required to be contributed to), sponsored by or maintained by the Company or any of its Subsidiaries for the benefit of any current or former employee, officer, director or individual consultant or director of the Company or any of its SubsidiariesSubsidiaries (the “Company Employees”), or with respect (b) pursuant to which the Company or any of its Subsidiaries has could have any liability, other than any (i) statutory plan, program or arrangement that is required under applicable Laws and maintained by any Governmental Authority and (ii) multiemployer pension plans (as defined in Section 3(37) of ERISA or Section 4001(a)(3) of the Code), or (c) any plans sponsored by a PEO for the benefit of any current or future Liability former employee, officer, director or individual consultant of the Company or its Subsidiaries.
(the “b) With respect to each Company Benefit Plans”Plan, the Company has delivered or made available to Acquiror copies of (i) each Company Benefit Plan and any current trust agreement or other funding instrument relating to such plan, (ii) the most recent summary plan description, if any, required under ERISA with respect to such Company Benefit Plan, (iii) the most recent annual report on Form 5500 and all attachments with respect to each Company Benefit Plan (if applicable). As , (iv) the most recent actuarial valuation (if applicable) relating to such Company Benefit Plan, (v) the most recent determination or opinion letter, if any, issued by the Internal Revenue Service with respect to any Company Benefit Plan; and (vi) all material communications received from or sent to the Internal Revenue Service or the Department of Labor (including a written description of any oral communication) within the last calendar year.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (i) each Company Benefit Plan, and with respect to each PEO Sponsored Plan, to the knowledge of the Company, has been administered in material compliance with its terms and all applicable Laws, including ERISA and the Code, and (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereofhereof have been made. There is no material Action pending or, to the knowledge of the Company, threatened against any Company Benefit Plan or the assets of any Company Benefit Plan (other than routine claims for benefits), or, with respect to each PEO Sponsored Plan, to the knowledge of the Company.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, with respect to each Company Benefit Plan, and with respect to each PEO Sponsored Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies knowledge of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) that is a “multiemployer nonqualified deferred compensation plan” within the meaning of Section 4001(a)(3) 409A of ERISA or (3) a “multiple employer plan” (as defined in the Code, such arrangement has, at all times while subject to Section 4063 or 4064 409A of ERISA).
(c) Each Company Benefit Plan has the Code, been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of (including documentary compliance) with, Section 406 of ERISA and Section 4975 409A of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefitsand all applicable guidance thereunder.
(e) No Company Benefit Plan or other Contract to which the Company or any Subsidiary is a party or otherwise bound provides for post-retirement any Person with a “gross up” or post-employment welfare benefits to former employees similar payment in respect of any Taxes that may become payable under Sections 409A or 4999 of the Company, other than pursuant to Section 4980B of the Code or any similar LawCode.
(f) Each Company Benefit Plan that which is intended to be “qualified” under qualified within the meaning of Section 401 401(a) of the Code (i) has received a favorable determination or opinion letter from as to its qualification or (ii) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the IRS plan sponsor and is valid as to such effect and the adopting employer, and, to the knowledge of the Company, nothing has occurred occurred, whether by action or is failure to act, that could reasonably be expected to cause the loss of such qualification.
(g) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA), no event has occurred and no condition exists that would subject the Company or its Subsidiaries to any tax, fine, lien, or penalty imposed by ERISA, the Code or other applicable Law.
(h) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, neither the Company nor any of its Subsidiaries has incurred any current or projected liability in respect of post-employment or post-retirement health, medical, or life insurance benefits for current, former or retired employees of Company or any of its Subsidiaries, except as required to avoid an excise tax under Section 4980B of the Code or otherwise except as may be required pursuant to any other applicable Law.
(i) None of the Company, its Subsidiaries nor any of their respective ERISA Affiliates sponsors, maintains or is required to contribute to, and at no point during the six year period prior to the date hereof sponsored, maintained or was required to contribute to, (i) a multiemployer pension plan (as defined in Section 3(37) of ERISA or Section 4001(a)(3) of the Code) or (ii) a plan subject to Section 302 or Title IV of ERISA or Section 412 or Section 4971 of the Code. Neither the Company nor any of its Subsidiaries has, either directly or through an ERISA Affiliate, any liability pursuant to Section 302 or Title IV of ERISA or Section 412 or Section 4971 of the Code. Neither the Company nor any of its Subsidiaries has any liability with respect to any employee benefit plan maintained for the benefit of any employee, officer, director or individual consultant based outside of the United States.
(j) Except as set forth on Section 5.13(j) of the Company Disclosure Letter, neither the execution or and delivery of this Agreement, Agreement by the Company nor the consummation of the Transactions Mergers will (either whether alone or upon the occurrence of in connection with any additional or subsequent eventsevent(s)) (Ai) result in the payment, acceleration, vesting, funding or creation of any payment or benefit becoming due or payable, or required to be provided, to compensatory rights of any director, officer or employee of the Company or independent contractor its Subsidiaries to payments or benefits or increases in any payments or benefits (including any loan forgiveness) under any Company Benefit Plan (or under any arrangement that would be a Company Benefit Plan if in effect as of the date of this Agreement), (ii) result in severance pay or any increase in severance pay upon any termination of employment, or (iii) require any contributions or payments to fund any obligations under any Company Benefit Plan, or cause the Company or any of its Subsidiaries to transfer or set aside any assets to fund any Company Benefit Plan.
(k) Except as set forth on Section 5.13(k) of the Company Disclosure Letter, no amount or benefit that could be, or has been, received (whether in cash or property or the vesting of property or the cancellation of indebtedness) by any current or former employee, officer, or director, other individual service provider or shareholder of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as who is a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute paymentdisqualified individual” within the meaning of Section 280G of the Code.
(h) No person is entitled Code could reasonably be expected to receive any additional payment (including any tax gross up be characterized as an “excess parachute payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1280G(b)(1) of the Code) that is subject to Section 409A as a result of the Code is in compliance in all material respects with Section 409A consummation of the CodeTransactions.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (Hudson Executive Investment Corp.)
Company Benefit Plans. (a1) (A) Section 3.18(a2.2(s) of the Company Disclosure Letter Schedule sets forth a complete and accurate list of each Benefit Plan. With respect to each Benefit Plan, the Company, the Bank and the Subsidiaries have complied, and are now in compliance, in all material respects, with all provisions of Employee Retirement Income Security Act of 1974, as amended (i“ERISA”), the Code and all laws and regulations applicable to such Benefit Plan; and (B) each Benefit Plan has been administered in all material respects in accordance with its terms. “Benefit Plan” means any employee welfare benefit plan” (as defined in plan within the meaning of Section 3(33(1) of ERISA), whether or not subject to ERISA any employee pension benefit plan within the meaning of Section 3(2) of ERISA, and (ii) other employmentany bonus, individual consultingincentive, bonusdeferred compensation, vacation, stock purchase, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retentionemployment, change of control and other similar fringe, welfare or other employee fringe benefit plan, program, agreementagreement or policy sponsored, contractmaintained or contributed to or required to be contributed to by the Company or by any trade or business, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employeeincorporated (an “ERISA Affiliate”), individual consultant or director of that together with the Company would be deemed a “single employer” within the meaning of section 4001(b) of ERISA, or to which the Company, the Bank, any Subsidiary or any of its Subsidiariestheir respective ERISA Affiliates is party, whether written or with respect to which oral, for the Company benefit of any director, former director, employee or former employee of the Company, the Bank or any of its Subsidiaries has any current or future Liability Subsidiary.
(the “Company Benefit Plans”). As of the date hereof, with 2) With respect to each Company Benefit Plan, to the extent applicable, the Company has made available heretofore delivered to Parent Buyer true and complete and accurate copies of each of the following documents: (Ai) a copy of the Benefit Plan and any amendments thereto (or if the Plan is not a written Plan, a description thereof); (ii) a copy of the two most recent annual reports and actuarial reports, if required under ERISA, and the most recent annual report on Form 5500 filed prepared with respect thereto in accordance with Statement of Financial Accounting Standards No. 87; (iii) a copy of the IRS, including all schedules most recent Summary Plan Description required under ERISA with respect thereto; (Biv) if the Plan is funded through a trust or any third party funding vehicle, a copy of the trust or other funding agreement and the latest financial statements thereof; and (v) the most recent determination letter received from the IRS for any Company Benefit Internal Revenue Service with respect to each Plan that is intended to qualify under section 401 of the Code.
(3) Except as set forth in Section 401(a2.2(s)(2) of the Code; (C) the plan documents and summary plan descriptionsCompany Disclosure Schedule, no claim has been made, or a written description to the knowledge of the terms Company threatened, against the Company, the Bank or any of the Subsidiaries related to the employment and compensation of employees or any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan, including, without limitation, any claim related to the purchase of employer securities or to expenses paid under any defined contribution pension plan other than ordinary course claims for benefits.
(b4) Neither No Benefit Plans are subject to Title IV or described in Section 3(37) of ERISA, and none of the Company, any of the Bank or its Subsidiaries or has at any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has time within the last past six (6) years sponsored or contributed to, or has or had within the past six (6) years any liability or obligation in respect of, any plan subject to Title IV or described in Section 3(37) of ERISA. The Company has not incurred any current or projected liability in respect of post-retirement health, medical or life insurance benefits for Company Employees, except as required to avoid an excise tax under Section 4980B of the Code or comparable State benefit continuation laws.
(15) an Each Plan intended to be “employee pension benefit planqualified” within the meaning of section 401(a) of the Code is so qualified and the trusts maintained thereunder are exempt from taxation under section 501(a) of the Code.
(6) None of the Company, the Bank or any Subsidiary, any Plan, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which the Company, the Bank or any Subsidiary, any Plan, any such trust, or any trustee or administrator thereof, or any party dealing with any Plan or any such trust 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.
(7) There has been no material failure of a Plan that is a group health plan (as defined in Section 3(2section 5000(b)(1) of ERISA), subject the Code) to Section 302 meet the requirements of ERISA, Section 412 section 4980B(f) of the Code or Title IV with respect to a qualified beneficiary (as defined in section 4980B(g) of ERISA, the Code).
(2) 8) Each Benefit Plan that is a “multiemployer non-qualified deferred compensation plan” within the meaning of Section 4001(a)(3409A(d)(1) of ERISA or the Code (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c409A Plan”) Each Company Benefit Plan has been maintained, operated and administered, complies in all material respects, in compliance respects with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning requirements of Section 406 of ERISA and Section 4975 409A of the Code has occurred and the guidance promulgated thereunder. No payment to be made under any 409A Plan is or is reasonably expected will be subject to occur with respect the interest and additional tax payable pursuant to any Company Benefit Plan.
(dSection 409A(a)(1)(B) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge Code. None of the Company, threatened on behalf of the Bank or against any Company Benefit Plan, the assets of any trust under any Company Benefit PlanSubsidiary is party to, or the plan sponsorotherwise obligated under, any contract, agreement, plan administrator or any fiduciary or any Company Benefit Plan with respect to arrangement that provides for the administration or operation gross-up of such plans, other than routine claims for benefitstaxes imposed by Section 409A(a)(1)(B) of the Code.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(gA) Neither the execution or and delivery of this Agreement, nor the consummation of the Transactions transactions contemplated hereby will (either alone or upon the occurrence of any additional or subsequent events) (Ai) result in any payment or benefit becoming due or payable(including severance, or required to be providedunemployment compensation, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former employee, officer or director of the Company, the Bank or any Subsidiary from the Company, the Bank or any Subsidiary under any Benefit Plan or otherwise, (ii) increase any benefits otherwise payable under any Benefit Plan, (iii) result in any acceleration of the time of payment or vesting of any such benefits, (iv) require the funding or increase in the funding of any such benefits or (v) result in any limitation on the right of the Company, the Bank or any Subsidiary to amend, merge, terminate or receive a reversion of assets from any Benefit Plan or related trust and (B) none of the Company, the Bank or any Subsidiary has taken, or permitted to be taken, any action that required, and no circumstances exist that will require the funding, or increase in the funding, of any benefits, or will result, in any limitation on the right of the Company, the Bank or any Subsidiary to amend, merge, terminate any Benefit Plan or receive a reversion of assets from any Benefit Plan or related trust.
(h10) No person is entitled to receive any additional payment (including any tax gross up payment) from The Company, the Company or any of its Bank and the Subsidiaries will be in compliance, as a result of the imposition of additional taxes under Section 4999 or Section 409A Closing Date, with Sections 111 and 302 of the CodeEmergency Economic Stabilization Act of 2008, including all guidance issued thereunder by a Governmental Entity.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Investment Agreement (Pacific Capital Bancorp /Ca/)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material Company Benefit Plan (iother than any individual offer letters, equity award agreements or similar agreements on the forms set forth on Section 4.13(a) of the Company Disclosure Letter that do not contain material individualized terms). For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) or any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, complete and accurate correct copies of (A) the most recent annual report on Form 5500 filed with the IRSsuch Company Benefit Plan (or, including if not written a written summary of its material terms) and all schedules related plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto; , (B) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
Plan and any pending request for such a determination letter, and (dC) As a copy of all material correspondence (other than correspondence in the date hereof, there are no Legal Proceedings pending or, ordinary course) with any Governmental Authority relating to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any a Company Benefit Plan with respect to the administration received or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” sent within the meaning of Section 280G of the Codelast three (3) years.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a3.14(a) of the Company Disclosure Letter Schedule sets forth a true, correct and complete and accurate list of each material Company Benefit Plan, a true and complete copy of each of which (ior a summary thereof) has been made available to GrafTech.
(b) No Company Benefit Plan is or was, within the last five (5) years, a “employee benefit multiemployer pension plan” (as defined in Section 3(3Sections 3(37) or 4001(a)(3) of ERISA), whether or not subject to ERISA and (iia “multiple employer plan” described in Section 413(c) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company Code or any a “multiple employer welfare arrangement” described in Section 3(40) of its SubsidiariesERISA, or with respect to which and, neither the Company or nor any of its Subsidiaries has has, within the last five (5) years, contributed to, been required to contribute to, or otherwise had any current obligation or future Liability liability in connection with any such “multiemployer plan,” “multiple employer plan” or “multiple employer welfare arrangement.”
(c) The Company, its Subsidiaries and any of its ERISA Affiliates have never maintained or contributed to, withdrawn from, terminated or incurred any material liability in respect of an “employee pension benefit plan” within the “meaning of Section 3(2) of ERISA that is or was subject to Title IV of ERISA or Section 412 of the Code.
(d) Each Company Benefit Plans”). As Plan has been established and administered in all material respects in accordance with its terms and in compliance with applicable Laws, including ERISA and the Code and, to the Knowledge of the date hereofCompany, with respect to each Company Benefit Plan, all reports, returns, notices, and other documentation required under applicable Laws to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 have been filed with or furnished to the IRS, including all schedules thereto; (B) the most recent determination letter from U.S. Department of Labor, the IRS for any Company Pension Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptionsGuaranty Corporation, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating or to any material compliance issues in respect the participants or beneficiaries of any such Company Benefit Plan.
(b) Plan have been filed or furnished on a timely basis. Neither the Company, Company nor any of its Subsidiaries or nor any other trade or business (whether or not incorporated) which would be treated as a single employer fiduciary with the Company or respect to any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur incurred any liability with respect to any Company Benefit Plan.
, including any liability, tax, penalty or fee under ERISA or the Code (d) As other than to pay premiums, contributions or benefits in the ordinary course), except where any such liability would not, individually or in the aggregate, have a Material Adverse Effect on the Company. All liabilities or expenses of the date hereof, there are no Legal Proceedings pending or, to the Knowledge Company in respect of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan (including workers compensation) or any similar plan previously maintained by the Company which have not been paid, have been properly accrued on the Company’s most recent financial statements in compliance with respect to the administration or operation of such plans, other than routine claims for benefitsGAAP.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code and the trusts maintained thereunder that are intended to be exempt from taxation under Section 401 501(a) of the Code has received a favorable determination letter from the IRS (or, with respect to any Company Benefit Plan that is a qualified “pre-approved” plan, as described in IRS Revenue Procedure 2005-16, the sponsor of such effect and pre-approved plan has received an opinion letter or advisory letter from the IRS) or other letter indicating that it is (or, in the case of any such pre-approved plan adopted by the Company, that the Company may rely upon such opinion letter or advisory letter as evidence that such plan is) so qualified or is in the process of seeking such a letter. To the Knowledge of the Company, nothing has occurred prior to or is reasonably expected since the issuance of such letters for any Company Benefit Plan to cause the loss of qualification under the Code of any such qualificationplans.
(f) There is no pending or, to the Knowledge of the Company, threatened claim (other than a routine claim for benefits), Proceeding, examination, audit, investigation or other proceeding with respect to any Company Benefit Plan, except where any such claim, investigation, examination, audit or other proceeding would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(g) Neither the execution or The execution, delivery of this Agreementand performance of, nor the and consummation of the Transactions transactions contemplated by, this Agreement and the other Transaction Agreements will not (either alone or upon the occurrence of i) entitle any Person to any additional benefits, including severance pay, unemployment compensation or subsequent events) any other payment, (Aii) result in any payment or benefit becoming due or payabledue, or required to be providedincrease the amount of any compensation due, to any directorPerson; (iii) accelerate the time of payment or vesting of any benefits under any Company Benefit Plan, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to due any such director, employee or independent contractor, individual; (Civ) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefitsuch payment, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1280G(b)(1) of the Code; or (v) that is subject to Section 409A result in triggering or imposition of any restriction or imposition on the rights of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required Company to be made to any Company Benefit Plan by applicable Law, any plan document amend or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding terminate any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid . Except as set forth on or before the date of this Agreement, have been fully reflected on the consolidated financial statements Section 3.14 of the Company included in Disclosure Schedule, the Company SEC Reporthas no obligation to provide or make available post-employment welfare benefits or welfare benefit coverage for any employee or former employee, except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and at the expense of the employee or former employee.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) and any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are currently maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the Laws of the United States, (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority (each, a “Company Benefit PlansPlan”). As The Company has made available to Acquiror, to the extent applicable, true, complete and correct copies of (A) each such Company Benefit Plan (or, if not written a written summary of its material terms) and all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (B) the most recent summary plan descriptions, including any summary of material modifications (C) the most recent annual reports (Form 5500 series) filed with the IRS with respect to such Company Benefit Plan, (D) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, and (E) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan and any pending request for such a determination letter.
(b) Except as set forth on Section 4.13(b) of the Company Disclosure Letter, (i) each Company Benefit Plan has been operated and administered in material compliance with its terms and all applicable Laws, including ERISA and the Code; (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereofhereof have been accrued and reflected in the Company’s financial statements to the extent required by GAAP; (iii) each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to its qualification or may rely upon an opinion letter for a prototype plan and, to the knowledge of the Company, no fact or event has occurred that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan; (iv) to the knowledge of the Company, there has not been any “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code, other than a transaction that is exempt under a statutory or administrative exemption) with respect to any Company Benefit Plan; and (v) neither the Company nor, to the knowledge of the Company, any other “fiduciary” (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company Benefit Plan.
(c) No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other pension plan that is subject to Title IV of ERISA (“Title IV Plan”) and neither the Company nor any of its ERISA Affiliates has sponsored or contributed to, been required to contribute to, or had any actual or contingent liability under, a Multiemployer Plan or Title IV Plan at any time within the previous six (6) years. Neither the Company nor any of its ERISA Affiliates has incurred any withdrawal liability under Section 4201 of ERISA that has not been fully satisfied.
(d) With respect to each Company Benefit Plan, to no actions, suits or claims (other than routine claims for benefits in the extent applicable, the Company has made available to Parent complete and accurate copies of (Aordinary course) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge knowledge of the Company, threatened on behalf of or against any Company Benefit Planthreatened, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect and to the administration knowledge of the Company, no facts or operation of circumstances exist that would reasonably be expected to give rise to any such plansactions, other than routine claims for benefitssuits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for post-retirement employees or post-employment welfare benefits to former employees of the CompanyCompany or any Subsidiary for periods extending beyond their retirement or other termination of service, other than pursuant to Section 4980B (i) coverage mandated by applicable Law, (ii) death benefits under any “pension plan,” or (iii) benefits the full cost of which is borne by the current or former employee (or his or her beneficiary). No condition exists that would prevent the Company or any Subsidiary of the Code Company from amending or terminating any Company Benefit Plan providing health or medical benefits in respect of any active employee of the Company or any similar LawSubsidiary of the Company (other than in accordance with the applicable Company Benefit Plan).
(f) Each Company Benefit Plan that is intended to be “qualified” under Except as set forth on Section 401 4.13(f) of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred Company Disclosure Letter or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution as required by applicable Law or delivery of this Agreement, nor the consummation of the Transactions transactions contemplated hereby will (not, either alone or upon in combination with another event (such as termination following the occurrence consummation of the transactions contemplated hereby), (i) entitle any additional current or subsequent events) (A) result in any payment former employee, officer or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor other service provider of the Company or any Subsidiary of its Subsidiaries, (B) increase the amount Company to any severance pay or value of any benefit other compensation or compensation otherwise benefits payable or required to be provided to by the Company or any such directorSubsidiary of the Company, employee or independent contractorexcept as expressly provided in this Agreement, (Cii) result in the acceleration of accelerate the time of payment, funding or vesting, or increase the amount of compensation or benefits due any such employee, officer or other individual service provider by the Company or a Subsidiary of the Company, or (iii) accelerate the vesting or funding and/or settlement of any such benefit or compensation or (D) except as would not be material to Company Award. The consummation of the Company and its Subsidiaries taken as a wholetransactions contemplated hereby will not, result in the payment of any amount that could, individually either alone or in combination with another event, result in any other payment or benefit, constitute an “excess parachute payment” within the meaning of under Section 280G of the Code to any employee, officer or other individual service provider of the Company or a Subsidiary of the Company. No Company Benefit Plan provides for a Tax gross-up, make whole or similar payment with respect to the Taxes imposed under Sections 409A or 4999 of the Code.
(hg) No person is entitled to receive any additional payment (including any tax gross up payment) from All Options have been granted in accordance with the terms of the Company or any of its Subsidiaries as a result Incentive Plan. Each Option has been granted with an exercise price that is no less than the fair market value of the imposition underlying Company Common Stock on the date of additional taxes grant, as determined in accordance with Section 409A of the Code or Section 422 of the Code, if applicable. Each Option is intended to either qualify as an “incentive stock option” under Section 4999 422 of the Code or to be exempt under Section 409A of the Code. The Company has made available to Acquiror, accurate and complete copies of (i) the Company Incentive Plan, (ii) the forms of standard award agreement under the Company Incentive Plan, (iii) copies of any award agreements that materially deviate from such forms and (iv) a list of all outstanding equity and equity-based awards granted under any Company Incentive Plan, together with the material terms thereof (including but not limited to grant date, exercise price, vesting terms, form of award, expiration date, and number of shares underlying such award). The treatment of Options under this Agreement does not violate the terms of the Company Incentive Plan or any Contract governing the terms of such awards.
(h) With respect to each Company Benefit Plan subject to the Laws of any jurisdiction outside the United States, (i) all employer contributions to each such Company Benefit Plan required by Law or by the terms of such Company Benefit Plan have been made, (ii) each such Company Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities and, to the knowledge of the Company, no event has occurred since the date of the most recent approval or application therefor relating to any such Company Benefit Plan that would reasonably be expected to adversely affect any such approval or good standing, and (iii) each such Company Benefit Plan required to be fully funded or fully insured, is fully funded or fully insured, including any back-service obligations, on an ongoing and termination or solvency basis (determined using reasonable actuarial assumptions) in compliance with applicable Laws. Each Company Benefit Plan that subject to the Laws of any jurisdiction outside the United States which provides retirement benefits is a “nonqualified deferred compensation defined contribution plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp. III)
Company Benefit Plans. (a) Section 3.18(a3.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each lists all material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the .
(b) The Company has made available to Parent a true and complete and accurate copies copy, as applicable, of (Ai) each Company Benefit Plan (including any amendments thereto) and descriptions of all material terms of any such plan that is not in writing, (ii) the most recent annual report on Form 5500 with accompanying schedules and attachments filed with the IRS, including all schedules thereto; (Biii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and (iv) the most recently received determination letter from or opinion letter, if any, issued by the IRS for any with respect to each Company Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” qualified under Section 401 401(a) of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss subject of a favorable opinion letter from the IRS on the form of such qualificationCompany Benefit Plan and, to the Knowledge of the Company, there are no facts or circumstances that would be reasonably likely to adversely affect the qualified status of any such Company Benefit Plan.
(d) No Company Benefit Plan is, and neither the Company nor any Company Subsidiary nor any of their respective ERISA Affiliates has, at any time within the previous six (6) years, sponsored, maintained or contributed to or been required to contribute to or otherwise had any liability in respect of (i) a multiemployer plan (within the meaning of Section 3(37) of ERISA), (ii) a single employer pension plan that is subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code, (iii) a multiple employer plan (within the meaning of Section 413(c) of the Code), or (iv) a multiple employer welfare arrangement (within the meaning of Section 3(40) of ERISA).
(e) Except as set forth on Section 3.11(e) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary has any obligation to provide (whether under a Company Benefit Plan or otherwise) health, accident, disability, life or other welfare insurance benefits to any Service Providers of the Company or any Company Subsidiary (or any spouse, beneficiary or dependent of the foregoing) beyond the termination of employment or other service of such Service Provider, other than health continuation coverage pursuant to Section 4980B of the Code or any similar state Law.
(i) Each Company Benefit Plan has been, in all material respects, maintained, operated and administered in compliance with its terms and the applicable requirements of ERISA, the Code and any other applicable Laws, (ii) all contributions required to have been made on or before the date hereof under the terms of any Company Benefit Plan have been timely paid or made in full, and (iii) no Action is pending or, to the Knowledge of the Company, threatened in writing against any Company Benefit Plan (other than routine claims for benefits).
(g) Neither Except as set forth on Section 3.11(g) of the Company Disclosure Letter, neither the execution or and delivery of this Agreement, nor the consummation of the Transactions will (transactions contemplated hereby, either alone or upon the occurrence of in combination with another event (whether contingent or otherwise), will (i) entitle any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor Service Provider of the Company or any of its Subsidiaries, Company Subsidiary to any payment or benefit; (Bii) increase the amount of compensation or value of any benefit or compensation otherwise payable or required to be provided benefits due to any such directorService Provider; (iii) accelerate the vesting, employee funding or independent contractortime of payment of any compensation, Company Equity Award or other benefit to any such Service Provider; (Civ) otherwise give rise to any material liability under any Company Benefit Plan; (v) require a “gross-up,” indemnification for, or payment to any Service Provider of the Company or any Company Subsidiary for any taxes imposed under Section 409A or Section 4999 of the Code; or (vi) result in the acceleration payment to any Service Provider of the time of payment, vesting Company or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment Subsidiary of any amount that couldwould, individually or in combination with any other payment or benefitsuch payment, constitute an “excess parachute payment” within the meaning of as defined in Section 280G 280G(b)(1) of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) and any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase equity or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the Laws of the United States, (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority (each, without regard to materiality, a “Company Benefit PlansPlan”). As The Company has made available to Acquiror, to the extent applicable, true, complete and correct copies of (A) each Company Benefit Plan (or, if not written a written summary of its material terms), including all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (B) the most recent summary plan descriptions, including any summary of material modifications (C) the most recent annual report (Form 5500 series) filed with the IRS with respect to such Company Benefit Plan, (D) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, and (E) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan and any pending request for such a determination letter.
(b) Except as set forth on Section 4.13(b) of the Company Disclosure Letter, (i) each Company Benefit Plan has been operated and administered in compliance with its terms and all applicable Laws, including ERISA and the Code, except where the failure to comply would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole; (ii) in all material respects, all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereofhereof have been accrued and reflected in the Company’s financial statements to the extent required by GAAP; (iii) each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to its qualification or may rely upon an opinion letter for a prototype plan and, to the knowledge of the Company, no fact or event has occurred that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan; (iv) to the knowledge of the Company, there has not been any “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code, other than a transaction that is exempt under a statutory or administrative exemption) with respect to any Company Benefit Plan; and (v) neither the Company nor, to the knowledge of the Company, any other “fiduciary” (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company Benefit Plan, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
(c) No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other pension plan that is subject to Title IV of ERISA (“Title IV Plan”) and neither the Company nor any of its ERISA Affiliates has sponsored or contributed to, been required to contribute to, or had any actual or contingent liability under, a Multiemployer Plan or Title IV Plan at any time within the previous six (6) years. Neither the Company nor any of its ERISA Affiliates has incurred any withdrawal liability under Section 4201 of ERISA that has not been fully satisfied.
(d) With respect to each Company Benefit Plan, to no material actions, suits or claims (other than routine claims for benefits in the extent applicable, the Company has made available to Parent complete and accurate copies of (Aordinary course) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge knowledge of the Company, threatened on behalf of or against any Company Benefit Planthreatened, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect and to the administration knowledge of the Company, no facts or operation of circumstances exist that would reasonably be expected to give rise to any such plansactions, other than routine claims for benefitssuits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for post-retirement employees or post-employment welfare benefits to former employees of the CompanyCompany or any Subsidiary for periods extending beyond their retirement or other termination of service, other than pursuant to Section 4980B (i) coverage mandated by applicable Law, (ii) death benefits under any “pension plan,” or (iii) benefits the full cost of which is borne by the Code current or any similar Lawformer employee (or his or her beneficiary).
(f) Each Except as set forth on Section 4.13(f) of the Company Disclosure Letter, the consummation of the transactions contemplated hereby will not, either alone or in combination with another event (such as termination following the consummation of the transactions contemplated hereby), (i) entitle any current or former employee, officer or other service provider of the Company or any Subsidiary of the Company to any severance pay or any other compensation or benefits payable or to be provided by the Company or any Subsidiary of the Company, except as expressly provided in this Agreement, or (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation or benefits (including Company Awards) due any such employee, officer or other individual service provider by the Company or a Subsidiary of the Company. The consummation of the transactions contemplated hereby will not, either alone or in combination with another event, result in any “excess parachute payment” under Section 280G of the Code to any current or former employee, officer or other individual service provider of the Company or a Subsidiary of the Company. No Company Benefit Plan that is intended provides for a Tax gross-up, make whole or similar payment with respect to be “qualified” the Taxes imposed under Section 401 Sections 409A or 4999 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualificationCode.
(g) Neither All Options have been granted in accordance with the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor terms of the Company Incentive Plan. Each Option has been granted with an exercise price that is no less than the fair market value of the underlying Company Common Stock on the date of grant, as determined in accordance with Section 409A of the Code or Section 422 of the Code, if applicable. Each Option is intended to either qualify as an “incentive stock option” under Section 422 of the Code or to be exempt under Section 409A of the Code. The Company has made available to Acquiror, accurate and complete copies of (i) the Company Incentive Plan, (ii) the forms of standard award agreement under the Company Incentive Plan, (iii) copies of any award agreements that materially deviate from such forms and (iv) a list of all outstanding equity and equity based awards granted under any Company Incentive Plan, together with the material terms thereof (including but not limited to grant date, exercise price, vesting terms, form of award, expiration date, and number of shares underlying such award). The treatment of Options under this Agreement does not violate the terms of the Company Incentive Plan or any Contract governing the terms of its Subsidiaries, such awards.
(Bh) increase With respect to each Company Benefit Plan subject to the amount or value Laws of any benefit or compensation otherwise payable or required to be provided to any such directorjurisdiction outside the United States, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not reasonably be expected to be material to the Company and its Subsidiaries Subsidiaries, taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) all employer contributions to each such Company Benefit Plan required by Law or by the terms of such Company Benefit Plan have been made, (ii) each such Company Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities and, to the knowledge of the Company, no event has occurred since the date of the most recent approval or application therefor relating to any such Company Benefit Plan that would reasonably be expected to adversely affect any such approval or good standing, and (iii) each such Company Benefit Plan required to be fully funded or fully insured, is fully funded or fully insured, including any back-service obligations, on an ongoing and termination or solvency basis (determined using reasonable actuarial assumptions) in compliance with applicable Laws. Each Company Benefit Plan that subject to the Laws of any jurisdiction outside the United States which provides retirement benefits is a “nonqualified deferred compensation defined contribution plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp. V)
Company Benefit Plans. (a) Section 3.18(aSchedule 4.17(a) of the Company Disclosure Letter sets forth contains a true and complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA)Company Benefit Plan sponsored, whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of by the Company or any of its Subsidiaries, Subsidiaries or with respect to which the Company or any of its Subsidiaries has made or has been required to make contributions at any current or future Liability (the “time. Any Company Benefit PlansPlan currently sponsored, maintained or contributed to by the Company or any of its Subsidiaries (a “Current Company Benefit Plan”). As of the date hereof, with ) and any special tax status enjoyed by such Current Company Benefit Plan is noted on such schedule.
(b) Except as set forth on Schedule 4.17(b):
(i) With respect to each Current Company Benefit Plan, to the extent applicablePlan identified on Schedule 4.17(a), the Company has heretofore delivered or made available to Parent the Purchaser true and complete and accurate copies of the plan documents and any amendments thereto (A) or, in the most recent annual report on Form 5500 filed with event the IRSplan is not written, including all schedules thereto; (B) a written description thereof), any related trust or other funding vehicle, any reports or summaries required under ERISA or the Code, the most recent determination letter received from the IRS for Internal Revenue Service with respect to each Current Company Benefit Plan intended to qualify under Code Section 401, nondiscrimination and coverage tests and such other documentation with respect to any Company Benefit Plan (whether current or not) as is reasonably requested by the Purchaser.
(ii) The Company’s and its Subsidiaries’ records accurately reflect the employment or service histories of its employees, independent contractors, contingent workers and leased employees, including their hours of service, and all such records are maintained in a usable electronic form.
(iii) No Company Benefit Plan or ERISA Affiliate Plan is or was subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan or ERISA Affiliate Plan is or was a “multiemployer pension plan” (as defined in Section 3(37) of ERISA) or subject to Section 302 of ERISA.
(iv) No Company Benefit Plan or ERISA Affiliate Plan is or was a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(v) Each Company Benefit Plan has been established, qualified, invested, operated and administered in all material respects in accordance with its terms and in compliance with ERISA, the Code and all Applicable Benefit Laws. Neither the Company nor any of its Subsidiaries has incurred, and, to the Knowledge of any Shareholder, no fact exists that reasonably could be expected to result in any liability to the Company or any of its Subsidiaries with respect to any Company Benefit Plan or any ERISA Affiliate Plan, including any liability, tax, penalty or fee under ERISA, the Code or any Applicable Benefit Law (other than to pay premiums, contributions or benefits in the ordinary course).
(vi) To the Knowledge of any Shareholder, no fact or circumstance exists that could adversely affect the tax-exempt status of a Company Benefit Plan that is intended to qualify under be tax-exempt. Further, each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code; (CCode and the trusts maintained thereunder that are intended to be exempt from taxation under Section 501(a) the plan documents and summary plan descriptions, or a written description of the terms Code has received a favorable determination or other letter indicating that it is so qualified.
(vii) There is no pending or threatened complaint, claim (other than a routine claim for benefits), proceeding, examination, audit, investigation or other proceeding or action of any kind in or before any Governmental Entity with respect to any Company Benefit Plan and, to the Knowledge of any Shareholder, there exists no state of facts that is not in writing; (D) after notice or lapse of time or both reasonably could be expected to give rise to any related trust agreementssuch claim, insurance contractsinvestigation, insurance policies examination, audit or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Planproceeding.
(bviii) Neither The assets of each Company Benefit Plan are reported at their fair market value on the Companyfinancial statements of each such plan.
(ix) No Company Benefit Plan provides medical, any of its Subsidiaries surgical, hospitalization, death or any other trade or business similar benefits (whether or not incorporatedinsured) which would for any Person for periods extending beyond their retirement or other termination of service, other than continuation coverage mandated by ERISA, the Code or any Applicable Benefit Law and only to the extent required under ERISA, the Code or any Applicable Benefit Law.
(x) All contributions or premiums required to be treated as a single employer with made by the Company or any of its Subsidiaries under Section 414 the terms of each Company Benefit Plan or by Applicable Benefit Law have been made in a timely fashion in accordance with Applicable Benefit Law and the terms of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Company Benefit Plan. Each Company Benefit Plan has been maintained, operated is fully funded or fully insured on both an ongoing and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred termination or is reasonably expected to occur with respect to any Company Benefit Planwind-up basis.
(dxi) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator No insurance policy or any fiduciary other contract or agreement affecting any Company Benefit Plan requires or permits a retroactive increase in premiums or payments due thereunder. The level of insurance reserves under each insured Company Benefit Plan is reasonable and sufficient to provide for all incurred but unreported claims.
(xii) To the Knowledge of any Shareholder, there have been no improper withdrawals, applications or transfers of assets from any Company Benefit Plan or the trusts or other funding media relating thereto, and neither the Company, any of its Subsidiaries nor any of their respective agents has been in breach of any fiduciary obligation with respect to the administration of any Company Benefit Plan or operation of such plans, the trusts or other than routine claims for benefitsfunding media relating thereto.
(exiii) No The Company has the right under the terms of each Company Benefit Plan provides for post-retirement and under Applicable Benefit Law to amend, revise, merge or post-employment welfare benefits terminate such plan (or its participation in such plan) or transfer the assets of such plan to former employees another arrangement, plan or fund at any time exclusively by action of the Company, other than pursuant and no additional contributions would be required to Section 4980B of the Code or any similar Lawproperly effect such termination.
(fxiv) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect The execution, delivery and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreementperformance of, nor the and consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payabletransactions contemplated by, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made will not entitle any Person to severance pay or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Reportunemployment compensation.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material (i) Company Benefit Plan. For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) or any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former employeedirector, officer, individual consultant worker or director employee of the Company or any of its the Company’s Subsidiaries, which is maintained, sponsored or contributed to by the Company or any of the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, complete and accurate correct copies of (A) such Company Benefit Plan (or, if not written a written summary of its material terms) and all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (B) the most recent summary plan description, including any summary of material modifications, (C) the most recent annual report on (Form 5500 series) filed with the IRSIRS with respect to such Company Benefit Plan, including all schedules thereto; (BD) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, and (E) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit PlanPlan and any pending request for such a determination letter.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (ACE Convergence Acquisition Corp.)
Company Benefit Plans. (a) Section 3.18(a4.12(a) of the Company Disclosure Letter Schedule sets forth a complete and accurate correct list of each material of: (i) all “employee benefit plan” (plans”, as defined in Section 3(3) of ERISA, and all other employee benefit arrangements or payroll practices, including bonus plans, consulting or other compensation agreements, incentive, equity or equity-based compensation, or deferred compensation arrangements, stock purchase, severance pay, sick leave, vacation pay, salary continuation, disability, hospitalization, medical insurance, life insurance, scholarship programs maintained by the Company and its Subsidiaries or to which the Company contributed or is obligated to contribute thereunder for current or former employees of the Company (the “Employee Benefit Plans”), whether or not subject to ERISA and (ii) other employmentall “employee pension plans”, individual consultingas defined in Section 3(2) of ERISA, bonus, stock option, stock purchase subject to Title IV of ERISA or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) 412 of the Code; (C) , maintained by the plan documents Seller and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be are or have ever been under common control, or which are or have ever been treated as a single employer employer, with the Company or any of its Subsidiaries under Section 414 414(b), (c), (m) or (o) of the Code maintains (“ERISA Affiliate”) or to which the Seller and any ERISA Affiliate contributed or has within ever been obligated to contribute thereunder (the last six (6“ERISA Affiliate Plans”). Section 4.12(a) years contributed to (1) an “employee pension benefit plan” (of the Disclosure Schedule separately sets forth each Company or ERISA Affiliate Plan which is a multiemployer plan as defined in Section 3(23(37) of ERISA, or has been subject to Sections 4063 or 4064 of ERISA.
(b) True, correct and complete copies of the following documents, with respect to each of the Employee Benefit Plans and ERISA Affiliate Plans (as applicable), have been delivered to the Purchaser (i) any plans and related trust documents, and all amendments thereto, (ii) the most recent Forms 5500 for the past three (3) years and schedules thereto, (iii) the most recent financial statements and actuarial valuations for the past three (3) years, (iv) the most recent IRS determination letter, (v) the most recent summary plan descriptions (including letters or other documents updating such descriptions) and (vi) written descriptions of all non-written agreements relating to the Employee Benefit Plans and ERISA Affiliate Plans.
(c) Each of the Employee Benefit Plans and ERISA Affiliate Plans intended to qualify under Section 401 of the Code (“Qualified Plans”) so qualify and the trusts maintained thereto are exempt from federal income taxation under Section 501 of the Code, and, except as disclosed on Schedule 5.13(c), nothing has occurred with respect to the operation of any such plan which could cause the loss of such qualification or exemption or the imposition of any liability, penalty or tax under ERISA or the Code.
(d) All contributions and premiums required by law or by the terms of any Employee Benefit Plan or ERISA Affiliate Plan or any agreement relating thereto have been timely made (without regard to any waivers granted with respect thereto) to any funds or trusts established thereunder or in connection therewith, and no accumulated funding deficiencies exist in any of such plans subject to Section 302 of ERISA, Section 412 of the Code Code, and all contributions for any period ending on or before the Closing Date which are not yet due will have been paid or accrued on the Company’s balance sheet on or prior to the Closing Date.
(e) The benefit liabilities, as defined in Section 4001(a)(16) of ERISA, of each of the Employee Benefit Plans and ERISA Affiliate Plans subject to Title IV of ERISA using the actuarial assumptions that would be used by the Pension Benefit Guaranty Corporation (in the event it terminated each such plan do not exceed the fair market value of the assets of each such plan. The liabilities of each Employee Benefit Plan that has been terminated or otherwise wound up, have been fully discharged in full compliance with applicable Law.
(f) There has been no “reportable event” as that term is defined in Section 4043 of ERISA and the regulations thereunder with respect to any of the Employee Benefit Plans or ERISA Affiliate Plans subject to Title IV of ERISA which would require the giving of notice, or any event requiring notice to be provided under Section 4041(c)(3)(C) or 4063(a) of ERISA.
(g) None of the Company, any ERISA Affiliate or any organization to which the Company is a successor or parent corporation, within the meaning of Section 4069(b) of ERISA, has engaged in any transaction, within the meaning of Section 4069 of ERISA.
(2h) None of the Employee Benefit Plans which are “welfare benefit plans” within the meaning of Section 3(1) of ERISA provide for continuing benefits or coverage for any participant or any beneficiary of a participant post-termination of employment except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) and at the expense of the participant or the participant’s beneficiary. Each of the Company and any ERISA Affiliate which maintains a “multiemployer group health plan” within the meaning of Section 4001(a)(35000(b)(1) of the Code has complied with the notice and continuation requirements of Section 4980B of the Code, COBRA, Part 6 of Subtitle B of Title I of ERISA and the regulations thereunder.
(i) There has been no violation of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 the Code with respect to the filing of applicable returns, reports, documents and notices regarding any of the Employee Benefit Plans or 4064 ERISA Affiliate Plans with the Secretary of ERISA)Labor or the Secretary of the Treasury or the furnishing of such notices or documents to the participants or beneficiaries of the Employee Benefit Plans or ERISA Affiliate Plans.
(cj) There are no pending Legal Proceedings which have been asserted or instituted against any of the Employee Benefit Plans or ERISA Affiliate Plans, the assets of any such plans or the Company, or the plan administrator or any fiduciary of the Employee Benefit Plans or ERISA Affiliate Plans with respect to the operation of such plans (other than routine, uncontested benefit claims), and there are no facts or circumstances which could form the basis for any such Legal Proceeding.
(k) Each Company of the Employee Benefit Plan Plans and ERISA Affiliate Plans has been maintained, operated and administered, in all material respects, in compliance accordance with its terms and with all provisions of applicable Law. No nonexempt All amendments and actions required to bring each of the Employee Benefit Plans and ERISA Affiliate Plans into conformity in all material respects with all of the applicable provisions of ERISA and other applicable Laws have been made or taken except to the extent that such amendments or actions are not required by Law to be made or taken until a date after the Closing Date and are disclosed on Section 4.12(k) of the Disclosure Schedule.
(l) The Seller and any ERISA Affiliate which maintains a “benefits plan” within the meaning of Section 5000(b)(1) of ERISA, have complied with the notice and continuation requirements of Section 4980B of the Code or Part 6 of Title I of ERISA and the applicable regulations thereunder.
(m) None of the Company or any ERISA Affiliate or any organization to which any is a successor or parent corporation, has divested any business or entity maintaining or sponsoring a defined benefit pension plan having unfunded benefit liabilities (within the meaning of Section 4001(a)(18) of ERISA) or transferred any such plan to any person other than the Seller or any ERISA Affiliate during the five-year period ending on the Closing Date.
(n) Neither the Company nor any “party in interest” or “disqualified person” with respect to the Employee Benefit Plans or ERISA Affiliate Plans has engaged in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit PlanSection 406 of ERISA.
(do) As None of the date hereofCompany or any ERISA Affiliate has terminated any Employee Benefit Plan or ERISA Affiliate Plan subject to Title IV of ERISA, there are no Legal Proceedings pending or, or incurred any outstanding liability under Section 4062 of ERISA to the Knowledge Pension Benefit Guaranty Corporation or to a trustee appointed under Section 4042 of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefitsERISA.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(gp) Neither the execution or and delivery of this Agreement, Agreement nor the consummation of the Transactions transactions contemplated hereby will (either alone or upon the occurrence of any additional or subsequent events) (Ai) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, Company; (Bii) increase the amount or value of any benefit or compensation benefits otherwise payable under any Employee Benefit Plan or required to be provided to any such director, employee ERISA Affiliate Plan; or independent contractor, (Ciii) result in the acceleration of the time of payment, payment or vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Codebenefits.
(hq) No person The Company is entitled not a party to receive any contract, plan or commitment, whether legally binding or not, to create any additional payment (including Employee Benefit Plan or ERISA Affiliate Plan, or to modify any tax gross up payment) from the Company existing Employee Benefit Plan or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the CodePension Pan.
(ir) Each No stock or other security issued by the Company forms or has formed a material part of the assets of any Employee Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Codeor ERISA Affiliate Plan.
(js) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, Any individual who performs services for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in (other than through a contract with an organization other than such individual) and who is not treated as an employee for federal income Tax purposes by the Company SEC Reportis not an employee for such purposes.
Appears in 1 contract
Samples: Stock Purchase Agreement (Apollo Medical Holdings, Inc.)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) and any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including without limitation, any employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of in control and other or similar fringe, welfare agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former employeedirector, officer, individual consultant or director of employee, which are maintained, sponsored or contributed to by the Company or any of its SubsidiariesERISA Affiliates, or with respect to which the Company or any of its Subsidiaries ERISA Affiliate is a party or has or may have any current or future Liability liability (the each, a “Company Benefit PlansPlan”). As The Company has delivered to Acquiror complete copies of the date hereof, with respect to (i) each Company Benefit PlanPlan (or, to the extent applicableif not written a written summary of its material terms), the Company has made available to Parent complete including without limitation all plan documents, trust agreements, insurance contracts or other funding vehicles and accurate copies all amendments thereto, (ii) all summaries and summary plan descriptions, including any summary of material modifications (Aiii) the most recent annual report on reports (Form 5500 series) filed with the IRSIRS with respect to such Company Benefit Plan, including all schedules thereto; (Biv) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, and (v) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan and any pending request for such a determination letter.
(b) Except as set forth on Section 4.13(b) of the Company Disclosure Letter, (i) each Company Benefit Plan has been operated and administered in material compliance with its terms and all applicable Laws, including ERISA and the Code; (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Company’s financial statements to the extent required by GAAP; and (iii) each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code (A) has received a favorable determination or opinion letter as to its qualification, (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (C) has time remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter. Each Option is exempt from the application of the provisions of Section 409A of the Code.
(c) No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other pension plan that is subject to Title IV of ERISA (“Title IV Plan”) and neither the Company nor any of its ERISA Affiliates has sponsored or contributed to or been required to contribute to a Multiemployer Plan or Title IV Plan at any time within the previous six (6) years. Neither the Company nor any ERISA Affiliates has incurred any withdrawal liability under Section 4201 of ERISA.
(d) As of With respect to the date hereofCompany Benefit Plans, there no actions, suits or claims (other than routine claims for benefits in the ordinary course) are no Legal Proceedings pending or, to the Knowledge knowledge of the Company, threatened on behalf of or against any Company Benefit Planthreatened, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect and to the administration knowledge of the Company, no facts or operation of circumstances exist that would reasonably be expected to give rise to any such plansactions, other than routine claims for benefitssuits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for post-retirement employees or post-employment welfare benefits to former employees of the CompanyCompany or any Subsidiary for periods extending beyond their retirement or other termination of service, other than pursuant to Section 4980B (i) coverage mandated by applicable Law, (ii) death benefits under any “pension plan,” or (iii) benefits the full cost of which is borne by the current or former employee (or his beneficiary). No condition exists that would prevent the Company or any Subsidiary from amending or terminating any Company Benefit Plan providing health or medical benefits in respect of any active employee of the Code Company or any similar LawSubsidiary other than limitations imposed under the terms of collective bargaining agreement.
(f) Each Company Benefit Plan that is intended to be “qualified” under Except as set forth on Section 401 4.13(f) of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this AgreementCompany Disclosure Letter, nor the consummation of the Transactions transactions contemplated by this Agreement will (not, either alone or upon in combination with another event (such as termination following the occurrence consummation of the transactions contemplated hereby), (i) entitle any additional current or subsequent events) (A) result in any payment former employee, officer or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor other service provider of the Company or any Subsidiary to any severance pay, unemployment compensation or any other payment, except as expressly provided in this Agreement or in the Company Disclosure Letter, or (ii) accelerate the time of its Subsidiariespayment or vesting, (B) or increase the amount of compensation due any such employee, officer or value of any benefit or compensation otherwise other service provider. No amounts payable or required under the Company Benefit Plans will fail to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning deductible for federal income tax purposes by virtue of Section 280G of the Code.
(hg) No person is entitled With respect to receive each Company Benefit Plan subject to the laws of any additional payment (including any tax gross up payment) from jurisdiction outside the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
United States, (i) all employer contributions to each such Company Benefit Plan required by Law or by the terms of such Company Benefit Plan have been made and (ii) each such Company Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities. Each Company Benefit Plan that subject to the laws of any jurisdiction outside the United States which provides retirement benefits is a “nonqualified deferred compensation defined contribution plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (GP Investments Acquisition Corp.)
Company Benefit Plans. (a) Section 3.18(a) 4.17 of the Company Seller Disclosure Letter sets forth Schedule contains a true and complete and accurate list of each material Seller Plan. The Sellers have delivered or made available to the Purchaser accurate, true, current and complete copies of (i) “employee benefit plan” (as defined in Section 3(3) of ERISA)all Seller Plans and related trust agreements, whether custodial agreements, administration agreements, investment management or not subject to ERISA and investment advisory agreements, insurance contracts, annuity contracts or other funding instruments, (ii) other employmentthe latest Internal Revenue Service determination or opinion letter obtained with respect to any such Seller Plan qualified or exempt under Section 401 or 501 of the Code, individual consultingas applicable, bonusand the results of discrimination testing for the most recently completed three (3) fiscal years for each such Seller Plan, stock option(iii) Forms 5500 and certified financial statements for the most recently completed three (3) fiscal years for each Seller Plan required to file such form; (iv) the most recent actuarial report, stock purchase if any, prepared by any such Seller Plan’s enrolled actuary, (iv) the current summary plan descriptions for each Seller Plan required to prepare and distribute summary plan descriptions, (v) all summaries furnished to Employees, officers or other equity-based, benefit, directors of the Sellers of all incentive compensation, profit sharingother plans and fringe benefits for which a summary plan description is not required, savings(vi) the form notifications to Employees of their rights under Section 4980B of the Code, retirement(vii) the most recent employee handbooks, disabilitypolicies and statements of practices for each Plan, vacation(viii) written descriptions of any unwritten plans, deferred compensationpolicies, severancepractices, terminationor arrangements, retention(ix) copies of any notices, change of control and other similar fringe, welfare letters or other employee benefit plancorrespondence from the IRS, program, agreement, contract, policy DOL or binding arrangement The Pensions Regulator relating to the Seller Plans; and (whether or not in writingx) maintained or with respect to any Seller Plan contributed to by the Sellers or any Subsidiary, or maintained for the benefit of any current Employees (or former employee, individual consultant Employees or director their dependents or beneficiaries) performing services outside of the Company United States (a “Foreign Seller Plan”), a copy of any valuation report or any of its Subsidiaries, or material correspondence with the pension trustees prepared with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plandefined benefit pension plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated Except as a single employer with the Company or any of its Subsidiaries under provided in Section 414 4.17 of the Code maintains Seller Disclosure Schedule,
(i) To Sellers’ Knowledge, each Assumed Plan has been established, administered and invested in accordance with its terms and in material compliance with all applicable Laws, and the Sellers have performed and complied in all material respects with all of their respective obligations under or has within with respect to the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) Assumed Plans. Each Seller Plan that is a “multiemployer 401(k) Plan” that is intended to be a “qualified plan” within the meaning of Section 4001(a)(3401(a) of ERISA or the Code, (3) a “multiple employer plan” (as defined in Section 4063 Qualified Plan”) has received a determination or 4064 of ERISA).
(c) Each Company Benefit opinion letter from the Internal Revenue Service to the effect that such Assumed Plan has been maintainedis so qualified, operated and administeredand, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within to the meaning of Section 406 of ERISA and Section 4975 Knowledge of the Code Sellers, nothing has occurred since the date of the most recent Internal Revenue Service determination or is opinion letter, as applicable, that would reasonably be expected to occur with respect to materially and adversely affect the tax-qualified status of any Company Benefit Qualified Plan.
(dii) As No Seller nor any ERISA Affiliate has communicated to present or former Employees, or formally adopted or authorized for present or former Employees, any plan not disclosed pursuant to this Section 4.17 or any material change in any of the date hereofSeller Plans.
(iii) There is no material action, there are no Legal Proceedings order, writ, injunction, judgment or decree outstanding or proceeding, arbitral action, governmental audit, or investigation relating to, or seeking benefits under, any Assumed Plan that is pending or, to the Knowledge of the CompanySellers, threatened on behalf of or against any Company Benefit of Sellers (other than any claims for benefits under the Seller Plans in the Ordinary Course of Business). No Assumed Plan has been the subject of governmental audit within the past three years that has resulted in a closing agreement, and the Sellers have not self-corrected any material defect within the preceding three years, nor is there any such self-correction or voluntary filing pending or expected to be made.
(iv) All contributions or premiums required to be made by Sellers to or under each Seller Plan have been made in a timely fashion in accordance with applicable Law, the terms of the applicable Seller Plan, and no Seller has, and as of the assets of Closing Date will not have, any trust under any Company Benefit Plan, actual or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan potential unfunded Liabilities with respect to the administration or operation of such plans, other than routine claims for benefitsany Seller Plans.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(fv) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Assumed Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is has, between January 1, 2005 and December 31, 2009, been operated and administered in good faith compliance in all material respects with Section 409A of the CodeCode and the guidance and regulations thereunder (“Section 409A”) and after December 31, 2009, in documenting and operational compliance with Section 409A, including the final Treasury Regulations issued thereunder.
(jvi) All Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (whether alone or in conjunction with any other event, including by reason of a termination of employment following such transaction) will result in forgiveness of Indebtedness or the acceleration, creation or increase of any rights of any person to benefits under any Assumed Plan assumed by the Purchaser in accordance with Section 1.4(d) (including the acceleration of the accrual or vesting of any benefits under any such Assumed Plan or the acceleration or creation of any rights under any employment, severance, retention, parachute or change in control agreement or the right to receive any transaction bonus or other similar payment) or the obligation to take action to secure any benefits payable under any Assumed Plan.
(vii) Each Seller and each ERISA Affiliate is and at all times has been in compliance with Sections 601 through 608 of ERISA (“COBRA”). Other than as required under Section 601 et seq. of ERISA, no Seller Plan provides benefits or coverage in the nature of health, life or disability insurance following retirement or other termination of employment.
(viii) With respect to any Assumed Plan that is subject to laws outside of the United States (a “Foreign Seller Plan”), except as set forth in Section 4.17(b)(ix) of the Seller Disclosure Schedule, (a) to the Seller’s Knowledge, such Foreign Seller Plan complies in a material respects with applicable non-U.S. law; (b) all required contributions to and premium payments on account of each Foreign Seller Plan required to be made prior to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement hereto have been timely made paid or paid in full in accrued and all material respects or, required contributions to the extent not and premium payments on account of each Foreign Seller Plan required to be made or paid through the Closing shall be made on or before the date Closing Date; (c) there are no unfunded Liabilities under any Foreign Seller Plan and, in connection therewith, the assets of any Foreign Seller Plan that is a defined benefit pension plan exceed the Liabilities (determined on a termination basis) with respect to such Foreign Seller Plan; and (d) there are no severance or other benefits required by Law or the terms of any Foreign Seller Plan to employees covered thereby by reason of the transactions contemplated by this Agreement. With respect to any Foreign Seller Plan, except as set forth in Section 4.17(b)(ix) of the Seller Disclosure Schedule, (x) all required contributions to and premium payments on account of each Foreign Seller Plan required to be made prior to the date hereto have been fully reflected timely paid or accrued and all required contributions to and premium payments on account of each Foreign Seller Plan required to be made through the consolidated financial statements Closing shall be made on or before the Closing Date; (y) there are no unfunded Liabilities under any Foreign Seller Plan and, in connection therewith, the assets of any Foreign Seller Plan that is a defined benefit pension plan exceed the Liabilities (determined on a termination basis) with respect to such Foreign Seller Plan; and (z) there are no severance or other benefits required by Law or the terms of any Foreign Seller Plan to employees covered thereby by reason of the Company included in the Company SEC Reporttransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Champion Enterprises Inc)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) and any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including without limitation, any employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of in control and other or similar fringeagreement) providing compensation (i.e., welfare not fees for services performed) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former employeedirector, officer, individual consultant or director of employee, which are maintained, sponsored or contributed to by the Company or any of its SubsidiariesERISA Affiliates, or with respect to which the Company or any of its Subsidiaries has any current or future Liability ERISA Affiliate is a party (the each, a “Company Benefit PlansPlan”). As The Company has delivered to Acquiror complete copies of the date hereof, with respect to (i) each Company Benefit PlanPlan (or, to the extent applicableif not written a written summary of its material terms), the Company has made available to Parent complete including without limitation all plan documents, trust agreements, insurance contracts or other funding vehicles and accurate copies all amendments thereto, (ii) all summaries and summary plan descriptions, including any summary of material modifications (Aiii) the most recent annual report on reports (Form 5500 series) filed with the IRSIRS with respect to such Company Benefit Plan, including all schedules thereto; (Biv) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, (v) the most recent determination letter from or opinion letter, if any, issued by the IRS for with respect to any Company Benefit Plan that and any pending request for such a determination letter, and (vi) all filings made with any Governmental Authorities, including but not limited any filings under the Voluntary Compliance Resolution or Closing Agreement Program or the Department of Labor Delinquent Filer Program.
(b) Except as set forth on Section 4.13(b) of the Company Disclosure Letter, (i) each Company Benefit Plan has been operated and administered in material compliance with its terms and all applicable Laws, including ERISA and the Code; (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Company’s financial statements to the extent required by GAAP; and (iii) each Company Benefit Plan which is intended to qualify under be qualified within the meaning of Section 401(a) of the Code; Code (A) has received a favorable determination or opinion letter as to its qualification, (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (C) the plan documents and summary plan descriptions, has time remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a written description favorable determination or opinion letter.
(c) Except as set forth on Section 4.13(c) of the terms of any Company Disclosure Letter, no Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other pension plan that is not in writing; subject to Title IV of ERISA (D“Title IV Plan”) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such neither the Company Benefit Plan.
(b) Neither the Company, nor any of its Subsidiaries ERISA Affiliates has sponsored or contributed to or been required to contribute to a Multiemployer Plan or Title IV Plan at any other trade or business time within the previous six (whether or not incorporated6) which would be treated as a single employer with years. Neither the Company nor any ERISA Affiliates has incurred any withdrawal liability under Section 4201 of ERISA nor does the Company or any ERISA Affiliates expect to withdraw in a “complete withdrawal” or “partial withdrawal” within the meaning of its Subsidiaries under Section 414 4203 and 4205 of ERISA, and to the knowledge of the Code maintains Company, no Multiemployer Plan has been terminated, or is in “endangered” or “critical” status so as to result directly or indirectly in any increase in contributions or in liability contingent or otherwise to the Company or any ERISA Affiliates.
(d) With respect to any Title IV Plan (i) no reportable event (within the meaning of Section 4043 of ERISA, other than an event for which the reporting requirements have been waived by regulations) has occurred within the last six three years, or is expected to occur, and (6ii) years contributed no filing has been made by the Company or any Subsidiary and no proceeding has been commenced to (1) an terminate any Title IV Plan. No Title IV Plan or any trust established thereunder has incurred any “employee pension benefit planaccumulated funding deficiency” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, ERISA and Section 412 of the Code Code), whether or not waived, as of the last day of the most recent fiscal year of each Title IV of ERISA, (2) a “multiemployer plan” within Plan ended prior to the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA)date hereof.
(ce) Each With respect to the Company Benefit Plan has been maintainedPlans, operated and administeredno material actions, suits or claims (other than routine claims for benefits in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(dordinary course) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge knowledge of the Company, threatened on behalf of or against any Company Benefit Planthreatened, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect and to the administration knowledge of the Company, no facts or operation of circumstances exist that would reasonably be expected to give rise to any such plansactions, other than routine claims for benefitssuits or claims.
(ef) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for post-retirement employees or post-employment welfare benefits to former employees of the CompanyCompany or any Subsidiary for periods extending beyond their retirement or other termination of service, other than pursuant to Section 4980B (i) coverage mandated by applicable Law, (ii) death benefits under any “pension plan,” or (iii) benefits the full cost of which is borne by the Code current or former employee (or his beneficiary). No condition exists that would prevent the Company or any similar Law.
(f) Each Subsidiary from amending or terminating any Company Benefit Plan that is intended to be “qualified” under Section 401 providing health or medical benefits in respect of any active employee of the Code has received a favorable determination letter from Company or any Subsidiary other than limitations imposed under the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss terms of such qualificationcollective bargaining agreement.
(g) Neither Except as set forth on Section 4.13(g) of the execution or delivery of this AgreementCompany Disclosure Letter, nor the consummation of the Transactions transactions contemplated by this Agreement will (not, either alone or upon in combination with another event (such as termination following the occurrence consummation of the transactions contemplated hereby), (i) entitle any additional current or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, former employee or independent contractor officer of the Company or any Subsidiary to any material severance pay, except as expressly provided in this Agreement or in the Company Disclosure Letter, or (ii) other than with respect to SARs, or the accelerated vesting of its SubsidiariesOptions, (B) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or value of any benefit or compensation otherwise officer. No amounts payable or required under the Company Benefit Plans will fail to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning deductible for federal income tax purposes by virtue of Section 280G of the Code.
(h) No person The Company is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is and at all times has been in compliance in all material respects with Section 409A the terms of the Codeagreement, by and among the Company, the Pension Benefit Guaranty Corporation and BW Holdings, LLC, dated January 31, 2003.
(i) With respect to each Company Benefit Plan subject to the laws of any jurisdiction outside the United States, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect (i) all employer contributions to each such Company Benefit Plan required by Law or by the terms of such Company Benefit Plan have been made and (ii) each such Company Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
(j) All contributions required to be made to any Company Benefit Plan by applicable LawThe funded status of the Company's Title IV Plans and postemployment medical benefits plans as of December 31, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through 2015 is accurately disclosed in the date of this Agreement have been timely made or paid in full in all material respects or, notes to the extent not required to be made or paid on or before Financial Statements for the date of this Agreementyear ended December 31, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report2015.
Appears in 1 contract
Samples: Merger Agreement (GP Investments Acquisition Corp.)
Company Benefit Plans. (a) Section 3.18(a) As of the Company Disclosure Letter sets forth date hereof, Schedule 3.19(a) contains a true, correct and complete and accurate list of each material Company Benefit Plan. True and correct copies of the following have been supplied, or made available, to Buyer: (i) all written Company Benefit Plans, including any amendments thereto, (ii) an accurate description of the material provisions of any Company Benefit Plan which is not in written form, as in effect on the date hereof, (iii) the most recent determination letter received from the IRS regarding any Company Benefit Plan (where applicable), (iv) the most recent Form 5500 for the Company Benefit Plans (where required by applicable law to be filed with the IRS), and (v) the most recent actuarial report for any Company Benefit Plan for which such a report is required.
(b) Each Company Benefit Plan which is or was, within the last five years, a “employee benefit multiemployer pension plan” (as defined in Section 3(3Sections 3(37) or 4001(a)(3) of ERISA), whether ) or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined described in Section 4063 or 4064 413(c) of ERISAthe Code is identified on Schedule 3.19(b).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt which is an “prohibited transactionemployee pension benefit plan” within the meaning of Section 406 3(2) of ERISA and that is or was subject to Title IV of ERISA or Section 4975 412 of the Code is identified on Schedule 3.19(c).
(d) Except as set forth on Schedule 3.19(d):
(i) Each Company Benefit Plan has occurred been established and administered in all material respects in accordance with its terms and in compliance with applicable Laws, including ERISA and the Code. Neither the Company nor any Subsidiary has incurred, or is reasonably expected expects to occur incur, any material liability with respect to any Company Benefit Plan or ERISA Affiliate Plan, including any tax or penalty under ERISA or the Code (other than to pay premiums, to make contributions or to pay benefits in the Ordinary Course).
(dii) As Each Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the date hereof, there Code (and the trusts which are a part of such plans that are intended to be exempt from taxation under Section 501(a) of the Code) has received a favorable determination letter from the IRS indicating that it is so qualified. Nothing has occurred prior to or since the issuance of the IRS determination letters for any Company Benefit Plan to cause the loss of qualification under the Code of any such plans.
(iii) There is no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of material claim (other than a routine claim for benefits), proceeding, examination, audit, investigation or against other proceeding with respect to any Company Benefit Plan.
(iv) The execution, delivery and performance of, and consummation of the assets transactions contemplated by, this Agreement will not (A) entitle any Person to any additional benefits, including severance pay, unemployment compensation or any other payment, or (B) accelerate the time of payment or vesting of any trust benefits under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to due any such director, employee individual. Neither the Company nor any Subsidiary is obligated or independent contractor, (C) result will become obligated in connection with the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would transactions contemplated by this Agreement to make a payment that will not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of deductible under Section 280G of the Code.
(hv) No person is entitled non-exempt prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) has occurred that gives rise to receive or would reasonably be expected to give rise to any additional payment (including any tax gross up payment) from material liability on the part of the Company or its Subsidiaries. All contributions required to be made to the Company Benefit Plans have been made in full. No assets of the Company or any of its Subsidiaries as are allocated to or held in a result “rabbi trust” or similar funding vehicle. No written or, to the Knowledge of the imposition Company, oral communication has been received from the Pension Benefit Guaranty Corporation in respect of additional taxes under Section 4999 any Company Benefit Plan subject to Title IV of ERISA concerning the funded status of any such plan or Section 409A any transfer of assets and liabilities from any such plan in connection with the Codetransactions contemplated herein.
(vi) No Company Benefit Plan is a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, and neither the Company nor any Subsidiary has received any services from an individual whom it treated as an independent contractor or leased employee, but who (to the Knowledge of the Company) has been determined by any Governmental Entity to be a common law employee for purposes of a Company Benefit Plan. With respect to each Company Benefit Plan that is a “multiemployer pension plan”, (i) no complete or partial withdrawal from such plan has been made by the Company or any Subsidiary, or, to the Knowledge of the Company, by any other person, that could result in any liability to the Company or any Subsidiary, whether such liability is contingent or otherwise, and (ii) no liability would be imposed on the Company or any Subsidiary in the event of a complete withdrawal by them on the Closing Date from any such plan.
(vii) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in within the meaning of Section 409A(d)(1) of the Code) Code and any award thereunder, in each case that is subject to Section 409A of the Code is Code, has been operated in good faith compliance in all material respects with Section 409A of the CodeCode since January 1, 2005, the proposed regulations issued thereunder and the IRS Notice 2005-1.
(jviii) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with With respect to insurance policies funding vacation benefits to which any Company Benefit PlanContinued Employee or employee whose terms of employment are subject to a collective bargaining agreement is entitled, for such vacation benefits are not cumulative and are forfeited if not taken during the fiscal year in which they are earned. No Continued Employee or employee whose terms of employment are subject to a collective bargaining agreement is able or has ever been able to carry forward to a subsequent fiscal year any period through the date of this Agreement have been timely made vacation benefits earned or paid accrued in full in all material respects or, to the extent not required to be made a prior fiscal year.
(ix) Schedule 3.19(d) identifies each current or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements former employee of the Company included in or any Subsidiary who is entitled to any present or future benefits or payments under the SERP or Unit Purchase Plan, as well as the number of units awarded under the Unit Purchase Plan currently outstanding for any current or former employee of the Company SEC Reportor any Subsidiary. The Sellers have delivered to Buyer true, correct and complete copies of all SERP plans, agreements, trusts and other related SERP documents.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a4.11(a) of the Company Disclosure Letter sets forth a true and complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA), whether or not subject to ERISA ”) and (ii) any other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit material plan, program, agreement, contractpractice, policy policy, program or binding arrangement (whether oral or not in writing) maintained written), as of the date hereof, providing compensation or contributed other benefits to for the benefit of any current or former employee, director or individual consultant independent contractor of the Company or director of its Subsidiaries that is maintained, sponsored or contributed to by the Company or any of its Subsidiaries, or with respect to under which the Company or any of its Subsidiaries has any current obligation or future Liability liability, whether actual or contingent, including each employment, incentive, bonus, deferred compensation, profit-sharing, pension, retirement, vacation, holiday, sick pay, cafeteria, material fringe benefit, medical, disability, retention, severance, termination, change in control, stock purchase, stock option, stock appreciation, phantom stock, restricted stock, restricted stock unit or other equity-based compensation plans, policies, programs, practices or arrangements (each, whether or not included in Section 4.11(a) of the Company Disclosure Letter, a “Company Benefit PlansPlan”). As Neither the Company, nor to the Knowledge of the date hereofCompany, any other Person, has any express or implied commitment, whether legally enforceable or not, to (i) modify, change or terminate any Company Benefit Plan, other than with respect to a modification, change or termination required by ERISA, the Code or the terms of such Company Benefit Plan or (ii) adopt any new Company Benefit Plan.
(b) The Company has made available to Parent and Merger Sub copies of each Company Benefit Plan (or, to the extent a copy does not exist, a description thereof). The Company has also made available to Parent and Merger Sub copies of (i) any trust agreement relating to each Company Benefit Plan, to (ii) the extent applicablemost recent summary plan description for each Company Benefit Plan for which such summary plan description is required and summary of material modifications, the Company has made available to Parent complete and accurate copies of (Aiii) the most recent annual report on Form 5500 and all attachments thereto filed with the IRSIRS with respect to such Company Benefit Plan (if applicable), including all schedules thereto; (Biv) the most recent determination letter from or opinion letter, if any, issued by the IRS for with respect to any Company Benefit Plan and (v) any material written communications to or from any Governmental Entity, or any material notices to or from any Governmental Entity, addressing any matter involving actual or potential material liability relating to a Company Benefit Plan.
(c) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to the Company and its Subsidiaries (taken as a whole), (i) each Company Benefit Plan has been administered in accordance with its terms and all applicable Laws, including ERISA and the Code; (ii) each Company Benefit Plan that is intended to qualify under be qualified within the meaning of Section 401(a) of the Code; Code (A) has received a favorable determination or opinion letter as to its qualification and nothing has occurred that could reasonably be expected to affect that qualification, (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable IRS advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (C) the plan documents has time remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter; and summary plan descriptions, or a written description of the terms of any (iii) each Company Benefit Plan that is has been operated and maintained in operational and documentary compliance with Section 409A of the Code and all IRS guidance promulgated thereunder or an available exemption therefrom. None of the Company Benefit Plans provides retiree health or retiree life insurance benefits coverage as of the date hereof; provided, that, for this purpose, retiree health or retiree life insurance benefits coverage shall be deemed not in writing; to include (Dx) coverage through the end of the applicable month of termination or during an applicable severance period, (y) any related trust agreementscoverage as may be required by Section 4980B of the Code and Section 601 of ERISA or any other applicable Law, insurance contracts, insurance policies or other documents (z) coverage provided at the expense of any funding arrangements; and the participant or the participant’s beneficiary.
(Ed) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such No Company Benefit Plan.
(b) Neither , and none of the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or their respective ERISA Affiliates maintains, contributes to, has within the last six (6) years maintained or contributed to or has any liability or obligation, whether fixed or contingent, with respect to (1i) an “employee a multiemployer pension benefit plan” plan (as defined in Section 3(23(37) of ERISA), (ii) a single employer plan or other pension plan that is subject to Title IV of ERISA or Section 302 of ERISA, ERISA or Section 412 of the Code or Title IV of ERISACode, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3iii) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 413(c) of the Code), or (iv) a multiple employer welfare arrangement (within the meaning of Section 3(40) of ERISA). Except as would not, individually or in the aggregate, be material to the Company and its Subsidiaries (taken as a whole), (i) no liability under Title IV of ERISA has been incurred by the Company, any Subsidiary or any of their respective ERISA Affiliates that has not been satisfied in full, (ii) no condition exists that presents a risk to the Company, any Subsidiary or any of their respective ERISA Affiliates of incurring or being subject (whether primarily, jointly or secondarily) to a liability thereunder and Section 4975 (iii) none of the Code Company or any of its Subsidiaries has occurred incurred any withdrawal liability under Section 4201 of ERISA.
(e) Except as would not, individually or is in the aggregate, reasonably be expected to occur result in a material liability to the Company and its Subsidiaries (taken as a whole), with respect to any the Company Benefit Plan.
Plans, no Actions (dother than routine claims for benefits in the ordinary course) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Lawthreatened.
(f) Each Company Benefit Plan that is intended to be “qualified” under Except as set forth in Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g4.11(f) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company Disclosure Letter or any of its Subsidiariesas would not, (B) increase the amount individually or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of paymentaggregate, vesting or funding of any such benefit or compensation or (D) except as would not reasonably be expected to be material to the Company and its Subsidiaries (taken as a whole), no Company Benefit Plan exists that, as a result of the execution of this Agreement, and the consummation of the Mergers and the other transactions contemplated by this Agreement (whether alone or in connection with any subsequent event(s)), would result in (i) severance pay or any increase in severance pay upon any termination of employment after the date of this Agreement; (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other obligation pursuant to, any of the Company Benefit Plans; (iii) result in the payment of any amount that could, individually retention bonuses or transaction bonuses; or (iv) result in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of payments which would not be deductible under Section 280G of the Code.
(h) No person . There is entitled no agreement, plan, Contract or other arrangement to receive any additional payment (including any tax gross up payment) from which the Company or any of its Subsidiaries as is a result of the imposition of party or by which it is otherwise bound to compensate any Person for excise or additional taxes under Taxes pursuant to Section 409A or Section 4999 or Section 409A of the Code.
(ig) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(14.11(g) of the CodeCompany Disclosure Letter lists all Company Benefit Plans available primarily to employees residing outside the United States (each, a “Non-U.S. Plan”). In respect of each Non-U.S. Plan: except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to the Company and its Subsidiaries, (i) that if a Non-US Plan is subject intended to Section 409A of qualify for special tax treatment, it meets all the Code requirements for such treatment; (ii) each Non-US Plan is in compliance administered, operated and funded in all material respects in accordance with Section 409A of its terms and all applicable statutes or governmental regulations and rulings relating to such plans in the Code.
(j) All contributions required to be made to any jurisdictions in which such Company Benefit Plan by applicable Law, any plan document is present or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects oroperates and, to the extent not relevant, the United States and the funding is sufficient to procure or provide for the projected benefit obligations, as of Completion; and (iii) each Non-U.S. Plan required to be made registered has been so registered and has been maintained in good standing with applicable regulatory authorities.
(h) Neither the Company nor any Subsidiary is or paid on has at any time been the “employer” or before in the date last six (6) years, an “associate of” or “connected with” the “employer” (as those terms in quotation marks are used in the UK Pensions Act 2004) of this Agreement, have been fully reflected on the consolidated financial statements a UK defined benefit pension arrangement.
(i) No employee or former employee of the Company included or any Subsidiary transferred to the Company or a Subsidiary under a Relevant Transfer who at any time before the Relevant Transfer was a member of a defined benefit pension arrangement, where “Relevant Transfer” means a relevant transfer as defined in the Company SEC ReportUK Transfer of Undertakings (Protection of Employment) Regulations 2006 or similar local legislation in any other applicable jurisdiction.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSection 4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material (i) Company Benefit Plan. For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or any other plan, policy, program or agreement (including any employment (other than offer letters for at-will employment that do not contain severance or require advance notice of termination), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable Law and maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, complete and accurate correct copies of (A) the most recent annual report on Form 5500 filed with the IRSsuch Company Benefit Plan (or, including if not written a written summary of its material terms) and all schedules plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto; , (B) the most recent determination letter from the IRS for summary plan descriptions, including any Company Benefit Plan that is intended to qualify under Section 401(a) summary of the Code; material modifications, (C) the plan documents and summary plan descriptions, or a written description of most recent annual reports (Form 5500 series) filed with the terms of any IRS with respect to such Company Benefit Plan that is not in writing; Plan, (D) any related trust agreements, insurance contracts, insurance policies the most recent actuarial report or other documents of any funding arrangements; financial statement relating to such Company Benefit Plan, and (E) any written notices to the most recent determination or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither opinion letter, if any, issued by the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur IRS with respect to any Company Benefit PlanPlan and any pending request for such a determination letter.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 4.14(a) of the Company Disclosure Letter Schedules sets forth a true and complete and accurate list of all material Company Benefit Plans (including, for each such Company Benefit Plan, its jurisdiction). With respect to each material Company Benefit Plan, the Company has provided Acquiror with true and complete copies of (as applicable): (i) all current plan documents pursuant to which the plan is maintained, funded and administered (including any trust agreement, insurance Contract or other funding instrument); (ii) the most recent IRS determination or opinion letter (or, for Company Benefit Plans maintained for the benefit of employees primarily performing services outside the United States, any similar determination by an applicable Governmental Authority), if applicable; (iii) the most recent summary plan description distributed to participations; (iv) the nondiscrimination and compliance testing results and Form 5500s for the three (3) most recent plan years; and (v) all material, non-ordinary course communications between the Company and any Governmental Authority sent or received in the last three years.
(b) Neither the Company nor any of its Subsidiaries nor any of their ERISA Affiliates has any liability with respect to or under: (i) a Multiemployer Plan; (ii) a “employee defined benefit plan” (as defined in Section 3(33(35) of ERISA), whether or not subject to ERISA and (iiERISA) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan a plan that is intended or was subject to qualify under Title IV of ERISA or Section 401(a) 412 of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2iii) a “multiemployer multiple employer plan” within the meaning of Section 4001(a)(3of 413(c) of ERISA the Code or Section 210 of ERISA; or (3iv) a “multiple employer planwelfare arrangement” (as defined in Section 4063 or 4064 3(40) of ERISA). Neither Company nor any of its Subsidiaries has any liabilities to provide any retiree or post-employment health or life insurance or other welfare-type benefits to any Person other than health continuation coverage pursuant to Law for which the recipient pays the full cost of coverage. Neither Company nor any of its Subsidiaries has any liabilities by reason of at any time being considered a single employer under Section 414 of the Code with any other Person.
(c) Each Company Benefit Plan has been maintained, operated and administered, administered in all material respects, respects in compliance accordance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within , including, to the meaning of Section 406 of extent applicable, ERISA and Section 4975 of the Code has occurred or is reasonably expected Code, and all material contributions required to occur be made with respect to any Company Benefit PlanPlan before the date hereof have been made. Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and has timely received a favorable determination or opinion or advisory letter from the Internal Revenue Service. Neither Company nor any of its Subsidiaries has incurred (whether or not assessed) any material penalty or Tax under Section 4980H, 4980B, 4980D, 6721 or 6722 of the Code, and no circumstance exists or event has occurred that could reasonably be expected to result in the imposition of any such material penalty or Tax.
(d) As of the date hereof, there There are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of claims or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or Actions with respect to any Company Benefit Plan with respect to the administration or operation of such plans, (other than routine claims for benefits). With respect to each Company Benefit Plan, all contributions, distributions, reimbursements and premium payments that are due have been timely made, or if not yet due, have been properly accrued in accordance with GAAP. Each Company Benefit Plan has been established, funded, administered and maintained, in form and in operation, in all material respects in compliance with its terms and all applicable Laws.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or and delivery of this Agreement, Agreement nor the consummation of the Transactions (whether alone or in combination with any other event(s)) will (either alone or upon the occurrence of any additional or subsequent events) (Ai) result in any payment or benefit becoming due to or payable, or required to be provided, to result in the forgiveness of any indebtedness of any director, employee or manager, officer, employee, individual independent contractor or other service providers of the Company or any of its SubsidiariesSubsidiaries (whether current, former or retired) or their beneficiaries under any Company Benefit Plan, (Bii) increase the amount or value of any benefit compensation or compensation otherwise benefits payable or required to be provided to any such director, employee manager, officer, employee, individual independent contractor or independent contractorother service providers of the Company or any of its Subsidiaries (whether current, former or retired or their beneficiaries) under any Company Benefit Plan, (Ciii) result in the acceleration of the time of payment, vesting funding or vesting, or trigger any payment or funding of any such benefit or compensation or (D) except as would not be material benefits to any director, manager, officer, employee, individual independent contractor or other service providers of the Company and or any of its Subsidiaries taken (whether current, former or retired) or their beneficiaries, or (iv) create or otherwise result in liability with respect to any Company Benefit Plan.
(f) No amount that could be, or has been, received (whether in cash or property or the vesting of property or the cancellation of indebtedness) by any director, manager, officer, employee, individual independent contractor or other service providers of the Company or any of its Subsidiaries under any Company Benefit Plan or otherwise as a wholeresult of the consummation of the Transactions could, result separately or in the payment of any amount that couldaggregate, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of be nondeductible under Section 280G of the Code (determined without regard to any exception set forth in Section 280G(b)(5) of the Code) or subjected to an excise Tax under Section 4999 of the Code.
(g) Neither Company nor any of its Subsidiaries has any current or contingent obligation to make a “gross-up” or similar payment in respect of any Taxes that may become payable under Section 4999 or 409A of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is required to be registered or intended to be Tax exempt or receive favorable tax treatment has been registered (and, where applicable, accepted for registration) and is Tax exempt and has been maintained in good standing, to the extent applicable, with each Governmental Authority. Except as set forth under Schedule 4.14(h) of the Company Disclosure Schedules, no Foreign Benefit Plan is a gratuity, termination indemnity or “defined benefit plan” (as defined in ERISA, whether or not subject to ERISA) or has any material unfunded or underfunded liabilities, nor are such unfunded liabilities reasonably expected to arise in connection with the Transactions. All material contributions required to have been made by or on behalf of the Company and its Subsidiaries with respect to plans or arrangements maintained or sponsored by a Governmental Authority (including severance, termination indemnities or other similar benefits maintained for employees outside of the U.S.) have been timely made or fully accrued. Without limiting the generality of the foregoing, except as set forth on Schedule 4.14(h) of the Company Disclosure Schedules, the Company’s and its Israeli subsidiaries’ liabilities to present or former employees in Israel regarding severance pay, accrued vacation, recreation pay and contributions to all pension plans and material Foreign Benefit Plans are either fully funded or are accrued for on the Company’s financial statements as of the date of such financial statements. Section 14 of the Xxxxxx Xxxxxxxxx Pay Law, 1963 was properly applied in accordance with the terms of the general permit issued by the Israeli Minister of Labor regarding mandatory pension arrangements regarding all employees in Israel based on their full salaries and from the date of the commencement of their employment and, upon the termination of employment of any of the employees, the Company will not have to make any payment under the Severance Pay Law, 1963, except for release of the funds accumulated in accordance with an applicable Section 14 arrangement.
(i) Except as set forth in Schedule 4.14(i) of the Company Disclosure Schedules, the Company and its Subsidiaries have not made, and there are no facts that would reasonably be expected to give rise to, any material changes to the Company Benefit Plans resulting from disruptions caused by the COVID-19 pandemic or COVID-19 Measures, nor are any such changes currently contemplated.
(j) All Company Options have been issued in compliance in all material respects with the Company Incentive Plan and all applicable Laws and properly accounted for in all material respects in accordance with applicable accounting standards. The Company Incentive Plan has received a favorable determination or approval letter from, or is otherwise approved by or deemed approved by passage of time without objection by the ITA. All Company Options granted under Section 102 of the ITO have been granted in compliance in all material respects with the applicable requirements of Section 102 of the ITO and the written requirements and guidance of the ITA, including the filing of the necessary documents with the ITA, the appointment of an authorized trustee, and the due and timely deposit of such securities with the trustee appointed by the Company from time to time in accordance with the provisions of the ITO, pursuant to the terms of Section 102 of the ITO and the guidance published by the ITA on July 24, 2012 and clarification dated November 6, 2012, in each case, or as otherwise provided in tax rulings obtained by the Company or its subsidiaries from the ITA. The Company has made available to Acquiror accurate and complete copies of the Company Options database, the Company Incentive Plan and each standard form of award agreement pursuant to which any Company Options were granted thereunder. Each Company Option has been granted with an exercise price that is intended to be no less than the fair market value of the underlying Company Common Stock on the date of grant. Each Company Benefit Plan that is or forms part of a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) within the meaning of the Code) that is subject to Section 409A of the Code is in compliance has been operated and administered in all material respects with in operational and documentary compliance with, or satisfies the requirements of an applicable exception to, all applicable requirements of, Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, Code and all premiums due or payable with respect to insurance policies funding any guidance promulgated thereunder and the terms of such Company Benefit Plan. All Company Options are evidenced by award agreements in substantially the forms previously made available to Acquiror, for any period through the date of this Agreement have been timely made or paid and no Company Option is subject to terms that are materially different from those set forth in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Reportsuch forms.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aPart 2.17(a) of the Company Disclosure Letter sets forth Schedule contains a true, correct and complete and accurate list of each material Company Benefit Plan, and each Employee and each former employee of the Company who is covered by each of such Company Benefit Plans. Any special tax status or tax benefits for plan participants enjoyed or offered by a Company Benefit Plan is noted on such schedule. Except as set forth in Part 2.17(a) of the Company Disclosure Schedule, the Company does not maintain, sponsor, contribute to, have any obligation to contribute to, or have any potential liability to, and has not at any time in the past maintained, sponsored or contributed to (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not any pension plan that is subject to ERISA and pension benefits standards legislation, or (ii) other employmentthan the Company Benefit Plans and the Statutory Plans, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, any retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare death or other employee disability benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to scheme for the benefit of any current or former employee, individual consultant or director employees of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability Company.
(the “Company Benefit Plans”). As of the date hereof, with b) With respect to each Company Benefit Plan, to Plan identified on Part 2.17(a) of the extent applicableCompany Disclosure Schedule, the Company has made available to Parent in the Data Room true, correct and complete and accurate copies of of: (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (Ci) the plan documents and summary any amendments thereto (or, in the event the plan descriptionsis not written, or a written description of the terms of any Company Benefit Plan that is not in writing; thereof), (Dii) any related trust agreementstrust, insurance contractscontract, insurance policies minimum premium contract, stop-loss agreement, investment management agreement, subscription and participation agreement and recordkeeping agreement or other documents of any funding arrangements; and vehicle, (Eiii) any written notices reports or summaries required under all Applicable Benefit Laws, (iv) the most recent summary plan description, together with each summary of material modifications with respect to such Company Benefit Plan, (v) all correspondence from the last three (3) years to or from any Governmental Authority Body relating to such Company Benefit Plan (including, without limitation, any materials relating to any material government investigation or audit or any submissions under any voluntary compliance issues in respect or correction programs), (vi) a summary of any proposed or required amendments or changes anticipated to be made to such Company Benefit Plan.
Plan at any time within the 12 months immediately following the Agreement Date, and (bvii) Neither the Company, such other documentation with respect to any of its Subsidiaries or any other trade or business Company Benefit Plan (whether current or not incorporatednot) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA)is reasonably requested by Parent.
(c) Each Company Benefit Plan has been maintainedestablished, registered, qualified, invested, operated and administered, administered in all material respects, respects in compliance accordance with its terms and in compliance with all applicable LawApplicable Benefit Laws. No nonexempt “prohibited transaction” within the meaning The Company has performed and complied in all respects with all of Section 406 of ERISA and Section 4975 of the Code has occurred its obligations under or is reasonably expected to occur with respect to the Company Benefit Plans and the Statutory Plans. The Company has not incurred, and no fact exists that reasonably could be expected to result in, any liability to the Company with respect to any Company Benefit Plan, including any liability, tax, penalty or fee under any Applicable Benefit Law (other than to pay premiums, contributions or benefits in the ordinary course of business consistent with past practice). There are no current or, to the Knowledge of the Company, threatened or reasonably foreseeable Encumbrances on any assets of any Company Benefit Plan.
(d) As Each of the date hereofCompany Benefit Plans that purports to qualify as a particular type of plan under applicable tax Laws or which has or purports to have tax-favored treatment, meets all requirements in effect under applicable tax Laws for such qualification or treatment and has complied with applicable tax Laws applicable to that type of plan or treatment. No event has occurred respecting any Company Benefit Plan which could reasonably be expected to adversely affect the tax-favored status of the Company Benefit Plan or its qualification as a particular type of plan under applicable Tax Laws.
(e) All obligations of the Company due prior to the Closing under the Company Benefit Plans (whether pursuant to the terms thereof or any applicable Law) have been satisfied, and there are no Legal Proceedings outstanding defaults or violations thereunder by the Company. There is no pending or, to the Knowledge of the Company, threatened on behalf (i) complaint, claim, charge, suit, proceeding or other action of or against any kind with respect to any Company Benefit Plan (other than a routine claim for benefits in accordance with such Company Benefit Plan’s claims procedures and that has not resulted in any litigation), the assets or (ii) proceeding, examination, audit, inquiry, investigation, citation, or other action of any trust under kind in or before any Governmental Body with respect to any Company Benefit Plan and there exists no state of facts that after notice or lapse of time or both reasonably could be expected to give rise to any such claim, investigation, examination, audit or other proceeding or to affect the registration of any Company Benefit Plan required to be registered. All benefit claims will be paid in accordance with Applicable Benefit Laws and the terms of the applicable Company Benefit Plan.
(f) All contributions and premium payments (including all employer contributions and employee salary reduction contributions) that are due with respect to each Company Benefit Plan have been made within the time periods prescribed by the Company Benefit Plan and Applicable Benefit Laws, and all contributions and premium payments for any period ending on or before the Closing Date that are an obligation of the Company and not yet due have either been made to such Company Benefit Plan, or have been accrued on the plan sponsor, plan administrator Company Financial Statements. No retroactive increase in premiums or any fiduciary or contributions is permitted under the terms of any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualificationContract related thereto.
(g) Neither With respect to each Company Benefit Plan that provides health and welfare benefits to the execution Employees, all claims incurred by the Company are (i) insured pursuant to a contract of insurance whereby the insurance company bears any risk of loss with respect to such claims, (ii) covered under a contract with a health insurance provider that provides benefits to the Employees pursuant to which such health insurance provider bears the liability for claims, or delivery of this Agreement, nor (iii) reflected as a liability or accrued for on the consummation Company Financial Statements. Except as set forth in Part 2.17(g) of the Transactions will Company Disclosure Schedule, no Company Benefit Plan provides or has ever provided benefits, including death, medical or health benefits (either alone whether or upon not insured), after an Employee’s termination of employment, and the occurrence of Company does not have any additional liabilities (contingent or subsequent eventsotherwise) with respect thereto other than (A) result in any payment or benefit becoming due or payable, or as required to be provided, pursuant to any director, employee or independent contractor of the Company or any of its SubsidiariesApplicable Benefit Laws, (B) increase deferred compensation benefits, reflected as liabilities on the amount Company Financial Statements, or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) benefits the full cost of which is borne by the current or former Employee (or the Employee’s beneficiary).
(h) Except as otherwise expressly provided for by this Agreement, the transactions contemplated by this Agreement will not result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually either alone or in combination with any other event) in: (i) any payment of, or increase in, remuneration or benefits, to any Employee, officer, director or consultant of the Company; (ii) any cancellation of Indebtedness owed to the Company by any Employee, officer, director or consultant of the Company; (iii) the acceleration of the vesting, funding or time of any payment or benefitbenefit to any Employee, constitute an officer, director or consultant of the Company; or (iv) result in any bonus, “excess golden parachute”, “parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional or other severance payment (including any tax gross up payment) from the Company whether or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Codenot such payment is considered to be reasonable compensation for services rendered).
(i) The Company has not announced, promised to enter into or entered into any plan or binding commitment to (i) create or cause to exist any additional Company Benefit Plan, or (ii) adopt, amend or terminate any Company Benefit Plan, other than any amendment required by Applicable Benefit Laws. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined may be amended or terminated in Section 409A(d)(1) of accordance with its terms without liability to the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the CodeCompany, Purchaser or Parent.
(j) All contributions required Part 2.17(j) of the Company Disclosure Schedule accurately identifies each former Employee who is receiving or is scheduled to be made receive (or whose spouse or other dependent is receiving or is scheduled to receive) any benefits (whether from the Company or otherwise, but excluding the Statutory Plans) relating to such former Employee’s employment with the Company; and Part 2.17(j) of the Company Disclosure Schedule accurately describes such benefits.
(k) The Company and its ERISA Affiliates do not maintain, sponsor, contribute to, have any obligation to contribute to, or have any potential liability to, and have not at any time in the past maintained, sponsored or contributed to or had any obligation to contribute to or had any potential liability to any Company U.S. Benefit Plan by applicable LawPlan. The Company has not announced, promised to enter into or entered into any plan document or other contractual undertakingbinding commitment to adopt, and all premiums due create or payable with respect cause to insurance policies funding exist any Company U.S. Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a3.13(a) of the Company Grosvenor Companies Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material (i) Company Benefit Plan. For purposes of this Agreement, a “Company Benefit Plan” means any “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) and any other plan, policy, program or agreement (including any employment, bonus, incentive or deferred compensation, equity or equity-based compensation, severance, retention, supplemental retirement, change in control or similar plan, policy, program or agreement but excluding any carried interest plans, policies, programs or agreements) providing compensation or other benefits to any current or former director, officer, individual consultant, worker or employee, which are maintained, sponsored or contributed to by any Grosvenor Company or any of the Grosvenor Companies’ Subsidiaries, or to which any Grosvenor Company or any of the Grosvenor Companies’ Subsidiaries is a party or has or may have any liability, and in each case whether or not subject to ERISA and (ii) other employmentthe Laws of the United States or funded, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit but excluding in each case any statutory plan, program, agreement, contract, policy program or binding arrangement (whether or not in writing) that is required under applicable law and maintained or contributed to for the benefit of by any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”)Governmental Authority. As of the date hereof, with With respect to each material Company Benefit Plan, the Grosvenor Companies have delivered to Acquiror, to the extent applicable, the Company has made available to Parent true, complete and accurate correct copies of (A) the documents comprising the Company Benefit Plan, including all amendments thereto (B) trust agreements, insurance policies or other funding vehicles, third party administrator agreements, and all amendments to any of these, (C) the most recent summary plan description, including any summary of material modifications, (D) the most recent annual report on (Form 5500 series) filed with the IRSIRS with respect to such Company Benefit Plan, including all schedules thereto; (BE) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, and (F) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit PlanPlan and any pending request for such a determination letter.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSet forth on Schedule 4.15(a) of the Company Disclosure Letter sets forth is a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”)Plan. As of the date hereof, with With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent correct, complete and accurate current copies of each of the following: (Ai) the most recent annual report on Form 5500 filed plan document, together with the IRSall amendments, including or if unwritten, a written summary of all schedules theretomaterial plan terms; (Bii) where applicable, any trust agreements, insurance policies and other documents establishing other funding arrangements (and all amendments thereto and the most recent determination letter from latest financial statements thereto); (iii) any summary plan descriptions, summaries of material modifications, material communications and employee handbooks; (iv) in the IRS for case of any Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code or exempt under Section 501(a) or 501(c)(9) of the Code, a copy of the most recent determination (or opinion or advisory) letter, if any, from the IRS; (v) the two most recent financial statements and actuarial valuation reports thereof, if applicable; (vi) any materials relating to any government investigation or audit or any submission under any voluntary compliance procedures within the prior three years; (vii) the annual report on Internal Revenue Service Form 5500-series or 990 for the last two years for each Company Benefit Plan required to file such form; and (viii) all material Contracts currently in effect relating to each Company Benefit Plan, including service provider Contracts, insurance Contracts, annuity Contracts, investment management Contracts, subscription Contracts, participation Contracts and recordkeeping Contracts.
(b) No member of the Company Group, nor, to the extent any material Liability could reasonably be expected to be incurred by the Company Group or Parent, any ERISA Affiliate, has within the prior six years maintained or been required to contribute to any benefit plan subject to Title IV or Section 412 of the Code or Section 302 of ERISA. No member of the Company Group, nor, to the extent any material Liability could reasonably be expected to be incurred by the Company Group or Parent, any ERISA Affiliate, has within the prior six years maintained or been required to contribute to (or borne any Liability with respect to) any “multiple employer plan” within the meaning of the Code or ERISA or any “multiemployer plan” as defined in Section 3(37) of ERISA. No Liability under Title IV of ERISA has been or is expected to be incurred by any member of the Company Group.
(c) Each Company Benefit Plan, including any associated trust or fund, has been administered in compliance in all respects with its terms and the applicable requirements of ERISA, the Code and any other applicable Laws, except to the extent such noncompliance would not result in any material Liability. Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a current favorable determination letter or is the subject of a favorable opinion or advisory letter from the IRS on the form of such Company Benefit Plan. Each Company Benefit Plan that is a “voluntary employees’ beneficiary association” under Section 501(c)(9) (a “VEBA”) has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(c)(9) of the Code. Since the date of each most recent determination referred to in this Section 4.15(c), to the Knowledge of the Company, no event has occurred and no condition or circumstance has existed that resulted or is likely to result in the revocation of any such determination letter or opinion letter or that could adversely affect the qualified status of any such Company Benefit Plan or the exempt status of any such trust or VEBA. No member of the Company Group has filed within the prior three years, or is considering filing, an application under the IRS Employee Plans Compliance Resolution System or the Department of Labor’s Voluntary Fiduciary Correction Program with respect to any Company Benefit Plan. No complete or partial termination of any Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has occurred within the prior three years or is expected to occur prior to the Effective Time. No member of the Company Group has any commitment, intention or understanding to create, modify or terminate any Company Benefit Plan. Except as required to maintain the tax qualified status of any Company Benefit Plan intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptionsCode or required under any other Law, or a written description of the terms no provision of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies would prevent the amendment or other documents termination of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan. With respect to each Company Benefit Plan which provides for the grant of options to purchase Equity Interests of any member of the Company Group, each such stock option has been granted at an exercise price equal to no less than the fair market value of the stock of such member of the Company Group, as applicable, at the date of grant and there has been no “backdating” of any such stock options.
(bd) Neither No member of the CompanyCompany Group, any nor to the Knowledge of its Subsidiaries or the Company any other trade “disqualified person” or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit planparty in interest” (as defined in Section 3(24975(e)(2) of the Code and Section 3(14) of ERISA), respectively) has engaged in any transaction with respect to any Employee Benefit Plan that would be reasonably likely to subject any member of the Company Group to Section 302 of any Taxes or penalty (civil or otherwise) imposed by ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA)other applicable Law.
(ce) Each All contributions, assessments and premium payments required to be made on account of each Company Benefit Plan have either been made or accrued on the Financial Statements, and each member of the Company Group has timely deposited all amounts withheld from employees into appropriate trusts or accounts, and, to the Knowledge of the Company, no event has occurred or condition exists that would reasonably be expected to result in a material increase in the cost to the Company Group of providing benefits under the Company Benefit Plans as compared to the most recently ended fiscal year except for any such increases in the ordinary course of business or resulting from market conditions. No deduction with respect to a Company Benefit Plan has been maintainedchallenged or disallowed by any Governmental Entity, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within to the meaning of Section 406 of ERISA and Section 4975 Knowledge of the Code Company, no event has occurred and no condition or is reasonably expected to occur with respect circumstance has existed that could give rise to any Company Benefit Plan.
(d) As of the date hereof, there such challenge or disallowance. There are no Legal Proceedings pending existing or, to the Knowledge of the Company, threatened on behalf of or against any Legal Proceedings relating to a Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefitsinformation or benefits in the ordinary course of business. No Company Benefit Plan or, to the Knowledge of the Company, any fiduciary thereof has been the direct subject of an audit, investigation or examination by any Governmental Entity within the prior three years.
(ef) No Other than as required under Section 601 et seq. of ERISA or Section 4980B of the Code or similar state or local law or as set forth in an Employment Agreement that has been provided to Parent, no Company Benefit Plan provides for post-employment or retiree health, life insurance or other welfare benefits, and no member of the Company Group has any Liability to provide any such benefits to any retired or former employees or active employees following such employees’ retirement or post-employment welfare termination of service. Each Company Benefit Plan may be amended or terminated by the applicable member of the Company Group without any material Liability (except ordinary course administrative Liabilities or vesting of benefits under a Company Benefit Plan that is a retirement plan).
(g) Except as contemplated by this Agreement with respect to former employees Equity Interests of the Company, other than pursuant to Section 4980B neither the execution and delivery of this Agreement nor the consummation of the Code Transactions could (either alone or in conjunction with any other event) (i) result in, or cause the accelerated vesting, payment, funding or delivery of, or increase the amount or value of, any payment or benefit to any employee, officer, director or other service provider of any member of the Company Group under any Company Benefit Plan or (ii) result in a requirement to pay any Tax “gross-up” or similar Law“make-whole” payments or Liabilities to any employee, director or consultant of any member of the Company Group.
(fh) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result constitutes in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or part a nonqualified deferred compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” plan within the meaning of Section 280G 409A of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the CodeCode and applicable guidance thereunder.
(i) Each Company Benefit Plan No event has occurred, and no condition or circumstance exists, that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) could reasonably be expected to subject any member of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to Company Group or any Company Benefit Plan by applicable Law, any plan document to material penalties or other contractual undertaking, and all premiums due excise Tax Liabilities under Sections 4980D or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made 4980H or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements 4980I of the Company included in Code or any other provision of the Company SEC ReportPatient Protection and Affordable Care Act, Pub.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 4.12(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA and (ii) any other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit material written plan, program, agreement, contract, policy or binding arrangement (whether program providing compensation or not in writing) maintained or contributed other benefits to for the benefit of any current or former director, officer or employee, individual consultant in each case that is maintained, sponsored or director of contributed to by the Company or any of its the Company Subsidiaries, or with respect to and under which the Company or any of its the Company Subsidiaries has any current material obligation or future Liability liability (the each a “Company Benefit PlansPlan”). As of the date hereof, with With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent Acquiror correct and complete copies of, if applicable, (i) such Company Benefit Plan and accurate copies of any trust agreement, (Aii) the most recent summary plan description, (iii) the most recent annual report on Form 5500 filed with the IRSInternal Revenue Service, including all schedules thereto; and (Biv) the most recent determination or opinion letter from issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit PlanInternal Revenue Service.
(b) Neither Each Company Benefit Plan is in compliance in all material respects with its terms and all applicable Laws, including ERISA and the Code. With respect to the Company Benefit Plans, no Actions (other than routine claims for benefits in the ordinary course) are pending or, to the knowledge of the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with threatened against the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee Company Subsidiaries. No Company Benefit Plan is a multiemployer pension benefit plan” plan (as defined in Section 3(23(37) of ERISA)) (a “Multiemployer Plan”) or other pension plan, in each case, that is subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” that is intended to be qualified within the meaning of Section 406 of ERISA and Section 4975 401(a) of the Code (i) has received a favorable determination or opinion letter as to its qualification, (ii) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (iii) has time remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter. To the knowledge of the Company, no circumstances have occurred during the past three (3) years that would reasonably be expected to adversely affect the tax qualified status of any such Company Benefit Plan. Nothing has occurred or is reasonably expected to occur with respect to any Company Benefit PlanPlan that has subjected or could reasonably be expected to subject the Company, any Company Subsidiary or any of their ERISA Affiliates or, with respect to any period on or after the Closing Date, the Acquiror or any of its Affiliates, to a penalty under Section 502 of ERISA or to tax or penalty under Section 4975 of the Code. All material benefits, contributions and premiums relating to each Company Benefit Plan have been timely paid in accordance with the terms of such Company Benefit Plan and all applicable Laws and accounting principles, and all benefits accrued under any unfunded Company Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan that is an employee welfare benefit plan (within the meaning of Section 3(1) of ERISA) provides for post-retirement continuing benefits or post-employment welfare benefits coverage for any participant or beneficiary of a participant after such participant’s termination of employment, except to former employees the extent required by Law, and there has been no material violation of the Company, other than pursuant to Section 4980B of the Code or Sections 601-608 of ERISA by the Company with respect to any similar Lawsuch Benefit Plan.
(e) Neither the Company nor any Company Subsidiary maintains a Title IV Benefit Plan, and no liability under Title IV or Section 302 of ERISA has been incurred by the Company during the past three (3) years that has not been satisfied in full.
(f) Each Company Benefit Plan that is intended subject to be “qualified” under Section 401 409A of the Code has received a favorable determination letter from been administered in material compliance with its terms and the IRS to such effect operational and nothing has occurred or is reasonably expected to cause the loss documentary requirements of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation Section 409A of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company Code and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. The Company does not have any tax obligation to gross up payment) from the Company up, indemnify or otherwise reimburse any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(ig) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (Except as defined in Section 409A(d)(1disclosed on Schedule 4.12(g) of neither the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, execution and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date delivery of this Agreement have been timely made by the Company nor the consummation of the transactions contemplated by this Agreement will result in the acceleration or paid in full in all material respects orcreation of any rights of any director, to the extent not required to be made officer or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements employee of the Company included in or any of the Company SEC ReportSubsidiaries to payments or benefits or increases in any payments or benefits or any loan forgiveness, in each case, from the Company or any of the Company Subsidiaries.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(a) Schedule 2.17.1 lists, as of the Company Disclosure Letter sets forth a complete and accurate list of --------------------- --------------- date hereof, each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA)written pension, whether or not subject to ERISA and (ii) other employmentretirement, individual consultingprofit-sharing, deferred compensation, bonus, incentive, performance, stock option, stock purchase appreciation, phantom stock, stock purchase, restricted stock, medical, retiree medical, hospitalization, vision, dental or other equity-basedhealth, benefit, incentive compensation, profit sharing, savings, retirementlife, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare termination or other employee benefit plan, program, agreementarrangement, contractagreement or policy (including each ERISA Plan (as hereinafter defined)) (each, policy a "Benefit Plan"), which currently covers any current or, in the case of any Company Benefit Plan (as hereinafter defined), former Employee (or binding arrangement (whether provides benefits for the dependents of any such Employee or not in writingformer Employee) and which is sponsored or maintained or contributed to for by any Company Entity (each, a "Company Benefit Plan"). Except as set forth in Schedule 2.17.1, each Company Benefit Plan --------------- complies in all material respects, and has been established, operated and administered in all material respects, in accordance with its terms and all applicable requirements of all Laws, including ERISA (as hereinafter defined) and the benefit of any current Code (as hereinafter defined), and no "reportable event", non-exempt "prohibited transaction" (as such terms are defined in ERISA and the Code, as applicable) or former employee, individual consultant termination or director of the Company or any of its Subsidiaries, or partial termination has occurred with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As Plan and the consummation of the date hereoftransactions contemplated by this Agreement will not result in the occurrence of any such event. Except as set forth on Schedule 2.17.1, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is an ERISA Plan --------------- intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptionsCode has received a ruling or determination letter concluding that such ERISA Plan so qualifies, and, to Seller's Knowledge, no event has occurred, amendment adopted or a action taken that would cause any such ERISA Plan to lose its qualified status. Except as set forth on Schedule 2.17.1, there are no written description of the terms of Contracts or, to Seller's --------------- Knowledge, plans or commitments by any Company Entity, whether legally binding or not, to create any additional Benefit Plan that is not in writing; (D) Plans for the Employees or to modify any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such existing Company Benefit Plan.
Plans, except with respect to changes (bi) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of required by ERISA, Section 412 of the Code or Title IV applicable Other Laws or (ii) contemplated by this Agreement. Except as set forth on Schedule 2.17.1, none of ERISA, (2) a “multiemployer plan” the Company Benefit --------------- Plans which are "welfare benefit plans" within the meaning of Section 4001(a)(33(1) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for provide post-retirement medical or post-employment welfare life insurance benefits or coverage to any current or former employees Employee or any dependent of the Companyany current or former Employee, other than pursuant to except as may be required under Section 4980B of the Code Code, Section 601 of ERISA or any similar applicable Other Law.
. Except as set forth on Schedule 2.17.1, --------------- no Company Entity has any liability (f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreementwhether actual, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payablecontingent, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (Botherwise) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.with
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 4.14(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) written “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) and any other material written plan, whether policy, program or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase agreement providing compensation or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its Subsidiaries, or with respect to and under which the Company or any of its Subsidiaries has any current material obligation or future Liability liability (each, excluding any “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA, a “Company Benefit PlansPlan”). As of the date hereof, with .
(b) With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent Acquiror correct and complete and accurate copies of (Ai) each Company Benefit Plan and any trust agreement relating to such plan, (ii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required, (iii) the most recent annual report on Form 5500 and all attachments thereto filed with the IRSInternal Revenue Service with respect to such Company Benefit Plan (if applicable), including all schedules thereto; (Biv) the most recent actuarial valuation (if applicable) relating to such Company Benefit Plan, and (v) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating Internal Revenue Service with respect to any material compliance issues in respect of any such Company Benefit Plan.
(bc) Neither Except as would not reasonably be expected to have a Material Adverse Effect: (i) each Company Benefit Plan has been administered in accordance with its terms and all applicable Laws, including ERISA and the Code; (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Company, any ’s financial statements to the extent required by GAAP; and (iii) each Company Benefit Plan which is intended to be qualified within the meaning of its Subsidiaries or any other trade or business (whether or not incorporatedSection 401(a) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains (A) has received a favorable determination or opinion letter as to its qualification, (B) has within been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the last six plan sponsor and is valid as to the adopting employer, or (6C) years contributed has time remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter.
(1d) an “employee pension benefit plan” (Except as defined in Section 3(2) of ERISAdisclosed on Schedule 4.14(d), none of the Company Benefit Plans are subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) and neither the Company nor any of its Subsidiaries has any material liability or obligation with respect to a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a ERISA. There has not been any “multiple employer planreportable event” (as that term is defined in Section 4063 or 4064 4043 of ERISA).
(c) Each Company Benefit Plan , but excluding reportable events with respect to which notice has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within waived by the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur Pension Benefit Guaranty Corporation) with respect to any Company Benefit Plan.
(d) As of Plan during the date hereof, there are no Legal Proceedings pending or, last three years that is reasonably expected to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefitshave a Material Adverse Effect.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits Except as disclosed on Schedule 4.14(e) and except as would not reasonably be expected to former employees of result in material liability to the Company, other than neither the execution and delivery of this Agreement by the Company nor the consummation of the transactions contemplated by this Agreement will result in the acceleration or creation of any rights of any person to payments or benefits or increases in any payments or benefits or any loan forgiveness. Except as set forth in Section 4.14(e), the Company is not a party to any agreement, contract, arrangement or plan that has resulted or would result, separately or in the aggregate, in any payment that would not be deductible pursuant to Section 4980B 280G of the Code or any similar Lawas a result of the transactions contemplated by this Agreement.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 To the knowledge of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this AgreementCompany, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in within the meaning of Section 409A(d)(1) of the Code) that is subject to Code has been operated in all material respects in good faith compliance with Section 409A of the Code is in compliance in all material respects with Section 409A of the Codesince January 1, 2005.
(jg) All contributions Except as would not reasonably be expected to have a Material Adverse Effect, each Company Benefit Plan that is subject to the Laws of any jurisdiction outside of the United States (each a “Foreign Benefit Plan”) and that is required to be made funded is funded to any Company Benefit Plan the extent required by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company all other Foreign Benefit PlanPlans, for any period through the date of this Agreement adequate reserves therefore have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected established on the consolidated financial accounting statements of the applicable Company included in the Company SEC Reportor any of its Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (ASC Holdco, Inc.)
Company Benefit Plans. (a) Section 3.18(aSchedule 4.12(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA and (ii) any other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit material written plan, program, agreement, contract, policy or binding arrangement (whether program providing compensation or not in writing) maintained or contributed other benefits to for the benefit of any current or former director, officer or employee, individual consultant in each case that is maintained, sponsored or director of contributed to by the Company or any of its Subsidiariesthe Company Subsidiary, or with respect to and under which the Company or any of its Subsidiaries the Company Subsidiary has any current material obligation or future Liability liability (the each a “Company Benefit PlansPlan”). As of the date hereof, with With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent Purchaser correct and complete copies of, if applicable, (i) such Company Benefit Plan and accurate copies of any trust agreement, (Aii) the most recent summary plan description, (iii) the most recent annual report on Form 5500 filed with the IRSInternal Revenue Service, including all schedules thereto; and (Biv) the most recent determination or opinion letter from issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit PlanInternal Revenue Service.
(b) Neither Each Company Benefit Plan is in compliance in all material respects with its terms and all applicable Laws, including ERISA and the Code. With respect to the Company Benefit Plans, no Actions (other than routine claims for benefits in the ordinary course) are pending or, to Company’s Knowledge, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with threatened against the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee Company Subsidiary. No Company Benefit Plan is a multiemployer pension benefit plan” plan (as defined in Section 3(23(37) of ERISA)) (a “Multiemployer Plan”) or other pension plan, in each case, that is subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” that is intended to be qualified within the meaning of Section 406 of ERISA and Section 4975 401(a) of the Code (i) has received a favorable determination or opinion letter as to its qualification, (ii) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (iii) has at least 6 months remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter. To the Company’s Knowledge, no circumstances have occurred during the past three (3) years that would reasonably be expected to adversely affect the tax qualified status of any such Company Benefit Plan. Nothing has occurred or is reasonably expected to occur with respect to any Company Benefit PlanPlan that has subjected or could reasonably be expected to subject the Company, the Company Subsidiary or any of their ERISA Affiliates or, with respect to any period on or after the Closing Date, the Purchaser or any of its Affiliates, to a penalty under Section 502 of ERISA or to tax or penalty under Section 4975 of the Code. All material benefits, contributions and premiums relating to each Company Benefit Plan have been timely paid in accordance with the terms of such Company Benefit Plan and all applicable Laws and accounting principles, and all benefits accrued under any unfunded Company Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan that is an employee welfare benefit plan (within the meaning of Section 3(1) of ERISA) provides for post-retirement continuing benefits or post-employment welfare benefits coverage for any participant or beneficiary of a participant after such participant’s termination of employment, except to former employees the extent required by Law, and there has been no material violation of the Company, other than pursuant to Section 4980B of the Code or Sections 601-608 of ERISA by the Company with respect to any similar Lawsuch Benefit Plan.
(e) Neither the Company nor the Company Subsidiary maintains a Title IV Benefit Plan, and no liability under Title IV or Section 302 of ERISA has been incurred by the Company during the past three (3) years that has not been satisfied in full.
(f) Each Company Benefit Plan that is intended subject to be “qualified” under Section 401 409A of the Code has received a favorable determination letter from been administered in material compliance with its terms and the IRS to such effect operational and nothing has occurred or is reasonably expected to cause the loss documentary requirements of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation Section 409A of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company Code and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. The Company does not have any tax obligation to gross up payment) from the Company up, indemnify or otherwise reimburse any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(ig) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (Except as defined in Section 409A(d)(1disclosed on Schedule 4.12(g) of neither the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, execution and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date delivery of this Agreement have been timely made by the Company nor the consummation of the transactions contemplated by this Agreement will result in the acceleration or paid in full in all material respects orcreation of any rights of any director, to the extent not required to be made officer or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements employee of the Company included in or the Company SEC ReportSubsidiary to payments or benefits or increases in any payments or benefits or any loan forgiveness, in each case, from the Company or the Company Subsidiary.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 4.13(a) of the Company Disclosure Letter sets forth a true and complete and accurate list of each material (i) Company Benefit Plan and each material PEO Plan. For purposes of this Agreement a “Company Benefit Plan” is each “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (including “multiemployer plans” as defined in Section 3(37) of ERISA), and any stock ownership, stock purchase, stock option, phantom stock, equity or other equity-based, severance, employment, individual consulting, retention, change-in-control, transaction, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, employee loan and all other benefit or compensation plans, agreements, programs, policies, Contracts or other arrangements, but excluding regular wages or salary paid in the ordinary course of business, whether or not subject to ERISA and (ii) other employmentERISA, individual consultingwhich, bonusin each case, stock optionare contributed to, stock purchase required to be contributed to, sponsored by or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to by any Company Group Member for the benefit of any current or former employee, individual consultant officer, director, or director other service provider of the Company or any of its Subsidiaries, Subsidiaries (the “Company Employees”) or under or with respect to which the any Company or any of its Subsidiaries Group Member has any current material liability or future Liability obligation, contingent or otherwise (together with the PEO Plans, the “Company Benefit Plans”). As of the date hereof, with .
(b) With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available delivered to Parent complete and accurate Acquiror copies of (Ai) each Company Benefit Plan and any trust agreement or other funding instrument relating to such plan, (ii) the most recent summary plan description, if any, required under ERISA with respect to such Company Benefit Plan, (iii) the most recent annual report on Form 5500 filed and all attachments with respect to each Company Benefit Plan (if applicable), (iv) the IRSmost recent actuarial valuation (if applicable) relating to such Company Benefit Plan, including all schedules thereto; (Bv) the most recent determination letter from or opinion letter, if any, issued by the Internal Revenue Service with respect to any Company Benefit Plan, and (vi) any non-routine correspondence with any Governmental Authority since January 1, 2019. With respect to each PEO Plan, the Company has provided to Acquiror (i) a current and complete copy of the summary plan description (and any summaries of material modifications thereto), (ii) the Contract pursuant to which the professional employer organization provides services to any Company Group Member or availability of such PEO Plans to the current and former employees of any Company Group Member and (iii) a copy of the most recent IRS for determination, opinion, or advisory letter.
(c) Except as would not reasonably be expected to be individually or in the aggregate material to the Company Group, taken as a whole, each Company Benefit Plan and, to the Company’s knowledge, each PEO Plan Company Benefit Plan has been established, maintained, funded and administered in compliance with its terms and all applicable Laws, including ERISA and the Code and all contributions, premiums or other payments that are due with respect to any Company Benefit Plan that have been made and all such amounts due for any period ending on or before the Closing Date have been made or properly accrued and reflected in the Company’s financial statements to the extent required by GAAP.
(d) Each Company Benefit Plan and, to the Company’s knowledge, each PEO Plan, which is intended to qualify under be qualified within the meaning of Section 401(a) of the Code; Code is so qualified and (CA) has received a favorable determination or opinion letter as to its qualification prior to the date of this Agreement or (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan documents sponsor and summary plan descriptionsis valid as to the adopting employer, and nothing has occurred, whether by action or a written description of the terms of failure to act, with respect to any Company Benefit Plan or, to the Company’s knowledge, any PEO Plan, that could reasonably be expected to adversely affect such qualification.
(e) Except as would not reasonably be expected to be individually or in the aggregate material to the Company Group, taken as a whole, (A) no event has occurred and no condition exists that would subject any Company Group Member, either directly or by reason of their affiliation with any member of their “Controlled Group” (defined as any organization which is a member of a controlled group of organizations within the meaning of Sections 414(b), (c), (m) or (o) of the Code), to any tax, fine, lien, penalty or other liability imposed by ERISA, the Code or other applicable Law, (B) there do not in writing; exist any pending or, to the Company’s knowledge, threatened Actions (Dother than routine claims for benefits), audits or investigations with respect to (i) any related trust agreementsCompany Benefit Plan or (ii) to the Company’s knowledge, insurance contractsany PEO Plan, insurance policies or other documents of any funding arrangements; and (EC) any written notices to there have been no “prohibited transactions” within the meaning of Section 4975 of the Code or from any Governmental Authority relating Sections 406 or 407 of ERISA and not otherwise exempt under Section 408 of ERISA and no breaches of fiduciary duty (as determined under ERISA) with respect to any material compliance issues in respect of any such Company Benefit Plan.
(bf) Neither Except as set forth on Schedule 4.13(c)(iv), no Company Group Member has incurred any current or projected liability or obligation to provide post-employment or post-retirement or post-termination health, medical or life insurance benefits for current, former or retired employees or owners or service providers of any Company Group Member, except as required to avoid an excise tax under Section 4980B of the Company, any of its Subsidiaries or any other trade or business Code and no Company Group Member has incurred (whether or not incorporatedassessed) which would be treated any material Tax or other penalty with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as a single employer with the Company applicable, or any of its Subsidiaries under Section 414 4980B, 4980D or 4980H of the Code maintains Code.
(g) (A) Except as set forth on Schedule 4.13(g), no Company Group Member sponsored or was required to contribute to, at any point during the six year period prior to the date hereof, or otherwise has within the last six (6) years contributed any current or contingent liability or obligation under or with respect to (1) an a multiemployer pension plan (as defined in Section 3(37) of ERISA or Section 4001(a)(3) of the Code) (a “employee pension Multiemployer Plan”), (2) a “defined benefit plan” (as defined in Section 3(23(35) of ERISA), ) or any other plan that is or was subject to Section 302 of ERISA, Section 412 of the Code 3.02 or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or Section 412 or Section 4971 of the Code, (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 210 of ERISA or Section 413(c) of the Code), or (4) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), and (B) no Company Group Member has any current or contingent liability or obligation on account of at any time being considered a single employer under Section 4975 414 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Planother Person.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(gh) Neither the execution or and delivery of this Agreement, Agreement by the Company nor the consummation of the Transactions Mergers will (either whether alone or upon the occurrence of in connection with any additional or subsequent eventsevent(s)) (A) result in the acceleration, funding, vesting or creation of any payment rights of any current or benefit becoming due or payable, or required to be provided, to any former director, employee officer, employee, consultant or independent contractor other service provider of the any Company Group Member to payments or benefits or increases in any of its Subsidiaries, payments or benefits (including any loan forgiveness) under any Company Benefit Plan or otherwise (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration payment to any current or former employee, officer, director, consultant or other service provider of any Company Group Member of any severance pay or money or other property, or any increase in severance pay upon any termination of employment or service.
(i) (i) No amount or benefit that could be, or has been, received (whether in cash or property or the vesting of property or the cancellation of indebtedness) by any current or former employee, officer, director, shareholder, consultant or other service provider of the time Company, any of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as or their Affiliates who is a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute paymentdisqualified individual” within the meaning of Section 280G of the Code could reasonably be expected to be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code.
(h) No person is entitled to receive or result in the imposition on any additional payment (including any tax gross up payment) from Person of an excise Tax under Section 4999 of the Company or any of its Subsidiaries Code as a result of the imposition of additional taxes under Section 4999 or Section 409A consummation of the CodeTransactions (whether alone or in connection with any subsequent event(s)) and (ii) no Company Group Member maintains any obligations to gross-up or reimburse any individual for any Tax or related interest or penalties incurred by such individual, including under Sections 409A or 4999 of the Code or otherwise.
(j) (i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in within the meaning of Section 409A(d)(1) of the Code) that is subject to Code has been operated and documented and in all material respects in compliance with Section 409A of the Code is in compliance in since its inception, and all material respects with applicable regulations and notices issued thereunder and (ii) no Company Benefit Plan or award thereunder provides to any “service provider” (within the meaning of Section 409A of the Code.
) of any Company Group Member any compensation or benefits which has subjected or could reasonably be expected in the future to subject such service provider to gross income inclusion or additional Tax pursuant to Section 409A(a)(1) of the Code. Without limiting the generality of Sections 4.13(a) through Section 4.13(c) above, with respect to each Company Benefit Plan that is subject to the Laws of a jurisdiction other than the United States (jwhether or not United States Law also applies) All (a “Foreign Plan”): (A) all employer and employee contributions to each Foreign Plan required by Law or by the terms of such Foreign Plan have been timely made, or, if applicable, accrued in accordance with normal accounting practices; (B) each Foreign Plan required to be made registered has been registered and has been maintained in good standing with applicable regulatory authorities; and (C) no Foreign Plan is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA) or has any Company Benefit Plan by applicable Law, any plan document unfunded or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Reportunderfunded liabilities.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Power & Digital Infrastructure Acquisition Corp.)
Company Benefit Plans. (a) Section 3.18(aSchedule 3.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”)Transferred Plan. As of the date hereof, with With respect to each material U.S. Company Benefit Transferred Plan, the Company has furnished or made available to the Purchaser true and complete copies of, to the extent applicable, the Company has made available to Parent complete and accurate copies of (Ai) the most recent current Company Transferred Plan documents (including any summary plan descriptions); (ii) any related trust agreements, material insurance contracts, insurance policies or any funding document related to Company Transferred Plans (including the latest account statement reflecting Company Transferred Plan assets); (iii) the latest Form 5500 annual report on Form 5500 filed with the IRSfor each U.S. Company Transferred Plan, including all schedules thereto; and (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (Div) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from the Internal Revenue Service or any office or representative of the United States Department of Labor or any similar Governmental Authority relating to any material compliance issues in respect of any such U.S. Company Benefit PlanTransferred Plan within the past three (3) years.
(b) Neither Each Company Transferred Plan and, solely with respect to Acquired Company Employees, each Seller Retained Plan: (i) intended to be qualified under Section 401(a) of the CompanyCode has received a favorable determination letter from the Internal Revenue Service or is the subject of a favorable opinion letter from the Internal Revenue Service on the form of such Plan and (ii) complies in form and in operation in all material respects with its terms and in all material respects with the requirements of the Code, ERISA and any other applicable Law. With respect to the Company Transferred Plan and, solely with respect to Acquired Company Employees, the Seller Retained Plans, all material required contributions have been timely, and accurately made on or before their due dates under applicable Law.
(c) None of the Company or its Subsidiaries has maintained, sponsored participated in, or contributed to, or has any other liability (including on account of another trade or business in the past six (6) years, whether or not incorporated) which , that would be treated as a single employer with the Company or any of its Subsidiaries under pursuant to Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2ERISA Affiliate”)) of ERISA), subject with respect to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA and no Company Transferred Plan and, solely with respect to Acquired Company Employees, no Seller Retained Plan is or (3) a “multiple employer plan” (as defined in Section 4063 has ever been subject to or 4064 incurred any liability under Title IV of ERISA).
(cd) Each Company Benefit Transferred Plan and, solely with respect to Acquired Company Employees, each Seller Retained Plan is and has been been: (i) maintained, funded, operated and administered, administered in all material respects, respects in compliance accordance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within , including the meaning applicable provisions of Section 406 of ERISA and Section 4975 of ERISA, the Code has occurred or is reasonably expected to occur and any applicable regulatory guidance issued by any Governmental Authority and (ii) funded in all material respects in compliance with the minimum applicable regulatory funding objectives. With respect to any each Company Benefit Transferred Plan.
(d) As of the date hereof, there are no Legal Proceedings pending orlegal proceedings pending, or to the Knowledge knowledge of the Company, threatened on behalf of or against any Company Benefit Plansuch plan, the assets of any trust under any Company Benefit Planplan trust, or the plan sponsor, sponsor or plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits. No Acquired Company has any liability to provide health or welfare benefits with respect to Service Providers who are not employees under the Company Transferred Plan (and, solely with respect to Service Providers of the Business, under any Seller Retained Plan) or otherwise.
(e) No Company Benefit Except with respect to any obligations arising under Part 6 of Subtitle B of Title I of ERISA, Section 4980 of the Code or similar Law, none of the Acquired Companies sponsors, maintains or contributes to any Plan that provides for post-retirement termination or post-employment welfare retirement health, medical or life insurance benefits to for the benefit of any current or former employees Acquired Company Employee, Service Provider of the CompanyBusiness, other than pursuant to Section 4980B or their respective dependents or beneficiaries, except as may be required by applicable Law or at the sole premium expense of the Code Acquired Company Employee, Service Provider of the Business, or any similar Lawhis or her dependents or beneficiaries.
(f) Each Company Benefit Plan that Except as set forth on Schedule 3.11(f), there is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other no payment or benefit, constitute an “excess or acceleration thereof, that would reasonably be expected to be made to a current or former Acquired Company Employee, Service Providers of the Business or any ERISA Affiliate that could: (i) be characterized as a parachute payment” payment within the meaning of Section 280G of the Code.
Code or Section 4999 of the Code and (hii) No person is entitled to receive any additional payment (including any tax gross up payment) from not be deductible by the Company or any of its Subsidiaries as a result by reason of Section 280G of the imposition of additional taxes Code. The Acquired Companies have no obligation to gross-up or indemnify any individual with respect to any Tax under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code (or any corresponding provisions under foreign Tax Law), or any interest or penalty related thereto. Each Company Transferred Plan and, solely with respect to Acquired Company Employees and Services Providers of the Business, each Seller Retained Plan, is and has been maintained, in form and operation, in material compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due the Acquired Companies have no obligation to gross-up or payable indemnify any individual with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements Tax under Section 409A of the Company included in the Company SEC ReportCode, or any interest of penalty related thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (TELUS International (Cda) Inc.)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material Company Benefit Plan (iother than any individual employment agreements, offer letters, equity award agreements or similar agreements on the forms set forth on Section 4.13(a) of the Company Disclosure Letter that do not contain material individualized terms). For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) or any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase employee loan, note or other pledge agreement, equity or equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, complete and accurate correct copies of (A) such Company Benefit Plan (or, if not written a written summary of its material terms) and all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (B) the most recent summary plan description, including any summary of material modifications, (C) the most recent annual report on (Form 5500 series) filed with the IRSIRS with respect to such Company Benefit Plan, including all schedules thereto; (BD) the most recent determination letter from actuarial report or other financial statement relating to such Company Benefit Plan, (E) the IRS most recent discrimination tests required under the Code for any each Company Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code; , (CF) the plan documents and summary plan descriptionsmost recent determination or opinion letter, or a written description of if any, issued by the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur IRS with respect to any Company Benefit Plan.
Plan and any pending request for such a determination letter, and (dG) As a copy of all material correspondence (other than correspondence in the date hereof, there are no Legal Proceedings pending or, ordinary course) with any Governmental Authority relating to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any a Company Benefit Plan with respect to the administration received or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” sent within the meaning of Section 280G of the Codelast three years.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Company Benefit Plans. sf-3640269
(a) Section 3.18(aSchedule 3.12(a) of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA), ”) (whether or not subject to ERISA ERISA) and (ii) any other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit material plan, program, agreement, contract, policy or binding arrangement (whether program providing compensation or not in writing) maintained or contributed other benefits to for the benefit of any current or former employeedirector, individual consultant officer, employee or director of other service provider, which are maintained, sponsored or contributed to by the Company or any of its SubsidiariesAG LLC, or with respect to and under which the Company or any of its Subsidiaries AG LLC has any current material obligation or future Liability liability (the each a “Company Benefit PlansPlan”). As of the date hereof, with .
(b) With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent Acquiror or its agents or representatives true, correct and complete and accurate copies of (Ai) each Company Benefit Plan and any trust agreement relating to such plan or with respect to any Company Benefit Plan that is not in writing, a written description of the material terms thereof, (ii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required, (iii) the most recent annual report on Form 5500 and all attachments thereto filed with the IRSInternal Revenue Service with respect to such Company Benefit Plan (if applicable), including all schedules thereto; (Biv) the most recent actuarial valuation (if applicable) relating to such Company Benefit Plan, and (v) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended Internal Revenue Service with respect to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(bc) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the There is no Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) Benefit Plan that is a “multiemployer welfare benefit plan” within the meaning of Section 4001(a)(33(1) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan that provides for post-retirement retiree or post-employment welfare benefits to a current or former employees of the Companydirector, officer, employee or other service provider, other than (i) pursuant to Section 4980B of the Code or any similar Lawstate Law (“COBRA”), (ii) coverage through the end of the calendar month in which a termination of employment occurs or (iii) pursuant to an applicable employment agreement or severance agreement, plan or policy requiring the Company or AG LLC to pay or subsidize COBRA premiums for a terminated employee, (iv) coverage through the end of the calendar month in which a termination of employment occurs or (v) pursuant to an applicable employment agreement or severance agreement, plan or policy requiring the Company or AG LLC to pay or subsidize COBRA premiums for a terminated employee.
(d) Each Company Benefit Plan has been administered in accordance with its terms and materially complies in form and in operation in all respects with applicable Laws (including ERISA and the Code). Except as would not reasonably be expected to result in a material liability, all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Company’s financial statements to the extent required by GAAP.
(e) Each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code (i) has received a favorable determination or opinion letter as to its qualification, (ii) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer, or (iii) has time remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter.
(f) Each At no time has the Company or any ERISA Affiliate contributed to, been obligated to contribute to, or otherwise sponsored or participated in (i) any multiemployer pension plan (as defined in Section 3(37) of ERISA and Section 414(f) of the Code); (ii) any multiple employer plan (within the meaning of Sections 4063 and 4064 of ERISA and Section 413(c) of the Code); (iii) a plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code or other pension plan, in each case, that is subject to Title IV of ERISA; or (iv) a Company Benefit Plan that is intended to be “qualified” under Section 401 for the benefit of service providers who perform services outside of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.United States. sf-3640269
(g) Neither There are no pending or, to the execution or delivery of this Agreement, nor the consummation knowledge of the Transactions will Company, threatened, material claims (either alone or upon the occurrence of other than routine claims for benefits) relating to any additional or subsequent events) (A) Company Benefit Plan. Except as would not reasonably be expected to result in any payment or benefit becoming due or payable, or required material liability to be provided, to any director, employee or independent contractor of the Company or any of its SubsidiariesAG LLC, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material with respect to the Company and its Subsidiaries taken as a wholeBenefit Plans, result no Actions (other than routine claims for benefits in the payment ordinary course) are pending or, to the knowledge of any amount that couldthe Company, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of threatened.
(h) Section 280G of the Code.
(h) No person Code does not apply to the Merger. There is entitled no written or unwritten agreement, plan, arrangement or other contractual obligation to receive any additional payment (including any tax gross up payment) from which the Company or AG LLC is a party or by which the Company or AG LLC is bound to compensate any of its Subsidiaries as a result of the imposition of additional taxes under Person for excise Taxes paid pursuant to Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined has been maintained and operated in Section 409A(d)(1) of the Code) that is subject to documentary and operational compliance with Section 409A of the Code or an available exemption therefrom, except as would not reasonably be expected to result in material liability to the Company or AG LLC. There is in compliance in all material respects with no written or unwritten agreement, plan, arrangement or other contractual obligation to which the Company or AG LLC is a party or by which the Company or AG LLC is bound to compensate any Person for additional Taxes payable pursuant to Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable LawExcept as set forth on Schedule 3.12(j), any plan document or other contractual undertaking, neither the execution and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date delivery of this Agreement have been timely made or paid in full in all material respects or, to by the extent not required to be made or paid on or before Company nor the date of this Agreement, have been fully reflected on the consolidated financial statements consummation of the Company included transactions contemplated by this Agreement will result in the Company SEC Reportacceleration or creation of any rights of any person to payments or benefits or increases in any payments or benefits or any loan forgiveness.
Appears in 1 contract
Samples: Merger Agreement (Boyd Gaming Corp)
Company Benefit Plans. (a) Section 3.18(a5.13(a) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date hereof, of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA)”) and any other plan, whether policy, program or not subject to ERISA and agreement (ii) other including any employment, individual consulting, bonus, stock optionincentive or deferred compensation, stock purchase equity or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred based compensation, severance, termination, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of the contributed to by any Company or any of its the Companies’ Subsidiaries, or with respect to which the any Company or any of its the Companies’ Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (i) subject to the Laws of the United States, (ii) in writing or (iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority (each, a “Company Benefit PlansPlan”). As of the date hereof, with respect The Companies have delivered to each Company Benefit PlanAcquiror, to the extent applicable, the Company has made available to Parent true, complete and accurate correct copies of (A) the most recent annual report on Form 5500 filed with the IRSeach Company Benefit Plan (or, if not written a written summary of its material terms), including all schedules plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto; , (B) the most recent determination letter from summary plan descriptions, including any summary of material modifications (C) the most recent annual reports (Form 5500 series) filed with the IRS for with respect to such Company Benefit Plan, (D) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, and (E) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan that and any pending request for such a determination letter.
(b) Except as set forth on Section 5.13(b) of the Company Disclosure Letter, (i) each Company Benefit Plan has been operated and administered in material compliance with its terms and all applicable Laws, including ERISA and the Code; (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Companies’ financial statements to the extent required by GAAP; (iii) each Company Benefit Plan which is intended to qualify under be qualified within the meaning of Section 401(a) of the Code; (C) Code has received a favorable determination or opinion letter from the IRS as to its qualification or may rely upon an opinion letter for a prototype plan documents and summary plan descriptionsand, or a written description to the knowledge of the terms of any Company Benefit Plan Companies, no fact or event has occurred that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices would reasonably be expected to or from any Governmental Authority relating to any material compliance issues in respect adversely affect the qualified status of any such Company Benefit Plan.
; (biv) Neither to the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 knowledge of the Code maintains or Companies, there has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has not been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt any “prohibited transaction” within the meaning of (as such term is defined in Section 406 of ERISA and or Section 4975 of the Code has occurred Code, other than a transaction that is exempt under a statutory or is reasonably expected to occur administrative exemption) with respect to any Company Benefit Plan; and (v) neither the Companies nor, to the knowledge of the Companies, any other “fiduciary” (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company Benefit Plan.
(c) No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other pension plan that is subject to Title IV of ERISA (“Title IV Plan”) and neither the Companies nor any of their ERISA Affiliates has sponsored or contributed to, been required to contribute to, or had any actual or contingent liability under, a Multiemployer Plan or Title IV Plan at any time within the previous six (6) years. Neither the Companies nor any ERISA Affiliates has incurred any withdrawal liability under Section 4201 of ERISA that has not been fully satisfied.
(d) As of With respect to the date hereofCompanies Benefit Plans, there no actions, suits or claims (other than routine claims for benefits in the ordinary course) are no Legal Proceedings pending or, to the Knowledge knowledge of the CompanyCompanies, threatened on behalf of or against any Company Benefit Planthreatened, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect and to the administration knowledge of the Companies, no facts or operation of circumstances exist that would reasonably be expected to give rise to any such plansactions, other than routine claims for benefitssuits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for post-retirement employees or post-employment welfare benefits to former employees of the CompanyCompanies or any Subsidiary for periods extending beyond their retirement or other termination of service, other than pursuant to Section 4980B (i) coverage mandated by applicable Law, (ii) death benefits under any “pension plan,” or (iii) benefits the full cost of which is borne by the current or former employee (or his or her beneficiary). No condition exists that would prevent the Companies or any Subsidiary of the Code Companies from amending or terminating any Company Benefit Plan providing health or medical benefits in respect of any active employee of the Companies or any similar LawSubsidiary of the Companies (other than in accordance with the applicable Company Benefit Plan).
(f) Each Except as set forth on Section 5.13(f) of the Company Disclosure Letter, the consummation of the transactions contemplated hereby will not, either alone or in combination with another event (such as termination following the consummation of the transactions contemplated hereby), (i) entitle any current or former employee, officer or other service provider of the Companies or any Subsidiary of the Companies to any severance pay or any other compensation payable by the Companies or any Subsidiary of the Companies, except as expressly provided in this Agreement, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee, officer or other individual service provider by the Companies or a Subsidiary of the Companies. The consummation of the transactions contemplated hereby will not, either alone or in combination with another event, result in any “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan that is intended provides for a Tax gross-up, make whole or similar payment with respect to be “qualified” the Taxes imposed under Section 401 Sections 409A or 4999 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualificationCode.
(g) Neither With respect to each Company Benefit Plan subject to the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence Laws of any additional jurisdiction outside the United States, (i) all employer contributions to each such Company Benefit Plan required by Law or subsequent eventsby the terms of such Company Benefit Plan have been made, (ii) (A) result in any payment or benefit becoming due or payable, or each such Company Benefit Plan required to be providedregistered has been registered and has been maintained in good standing with applicable regulatory authorities and, to any director, employee or independent contractor the knowledge of the Companies, no event has occurred since the date of the most recent approval or application therefor relating to any such Company Benefit Plan that would reasonably be expected to adversely affect any such approval or any of its Subsidiariesgood standing, and (Biii) increase the amount or value of any benefit or compensation otherwise payable or each such Company Benefit Plan required to be provided fully funded or fully insured, is fully funded or fully insured, including any back-service obligations, on an ongoing and termination or solvency basis (determined using reasonable actuarial assumptions) in compliance with applicable Laws. Each Company Benefit Plan subject to the Laws of any such directorjurisdiction outside the United States which provides retirement benefits is a defined contribution plan.
(h) In the past six years, no employee of the Companies or independent contractor, (C) result any Subsidiary of the Companies in the acceleration United Kingdom has transferred to their employer pursuant to the United Kingdom Transfer of Undertakings (Protection of Employment) Regulations 1981 or 2006 (as amended) who prior to such transfer participated in a defined benefit pension scheme that made provision for benefits other than related to old age, invalidity or death.
(i) Neither the time Companies nor any Subsidiary has in the past six years been an employer in relation to, participated in or had any liability (whether prospective, contingent or otherwise) to or in respect of paymenta defined benefit pension scheme or, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company business of the Companies and its Subsidiaries taken as a wholetheir Subsidiaries, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute has been an “excess parachute paymentassociate of” within the meaning of Section 280G of the Codeor “connected with” any Person who is or has been an employer in relation to such a scheme.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp.)
Company Benefit Plans. (a) Section 3.18(a4.13(a) of the Company Disclosure Letter sets forth a true, correct and complete and accurate list list, as of the date hereof, of each material (i) Company Benefit Plan. For purposes of this Agreement, a “Company Benefit Plan” means an “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA and any other plan, policy, program or agreement (ii) other including any employment, individual consulting, bonus, stock option, stock purchase incentive or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severanceemployee loan, terminationnote or pledge agreement, equity or equity-based compensation, retention, supplemental retirement, change of in control and other or similar fringeplan, welfare policy, program or agreement) providing compensation or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed benefits to for the benefit of any current or former director, officer, individual consultant, worker or employee, individual consultant which are maintained, sponsored or director of contributed to by the Company or any of its the Company’s Subsidiaries, or with respect to which the Company or any of its the Company’s Subsidiaries is a party or has or may have any current liability, and in each case whether or future Liability not (x) subject to the “Company Benefit Plans”). As Laws of the date hereofUnited States, with (y) in writing or (z) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable Law and maintained by any Governmental Authority. With respect to each material Company Benefit Plan, to the extent applicable, the Company has made available to Parent Acquiror, to the extent applicable, true, correct and complete and accurate copies of (Ai) such Company Benefit Plan (or, if not written a written summary of its material terms) and all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (ii) the most recent summary plan description, including any summary of material modifications, (iii) the most recent annual report on (Form 5500 series) filed with the IRSIRS with respect to such Company Benefit Plan, including all schedules thereto; (Biv) the most recent actuarial report or other financial statement relating to such Company Benefit Plan and (v) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit PlanPlan and any pending request for such a determination letter.
(d) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(g) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
Samples: Merger Agreement (Revolution Acceleration Acquisition Corp)
Company Benefit Plans. (a) Section 3.18(a) The Company has made available to Buyer a schedule that sets forth for each employee of the Company Disclosure Letter sets forth a complete and accurate list of each material (i) “employee benefit plan” (Group Companies as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereofof the agreement (to the extent permitted by applicable Law), his or her employee identification number, title, annual base salary, most recent annual bonus received, current annual bonus opportunity, location of employment, leave status and exempt or non-exempt status, in each case, as of the date of the agreement. Five Business Days prior to the Closing Date, the Company will provide Buyer with respect a revised version of such schedule, updated as of ten days prior to the Closing Date. Within five (5) Business Days prior to Closing, the Company shall make available to Buyer an updated list of employees of the Group Companies as of such date. To the Knowledge of the Company, no Covered Employee intends to resign or retire as a result of the transactions contemplated by this Agreement or otherwise within one year following the Closing Date.
(b) Schedule 3.17(b) contains a true, correct and complete list of all Company Benefit Plans (other than Excluded Employment Agreements) as of the date hereof and specifies whether such plan is a US Plan or an International Plan. For each Company Benefit Plan, to Plan (other than the extent applicableExcluded Employment Agreements), the Company has made available to Parent complete Buyer a copy of such plan (or a description, if such plan is not written) and accurate copies all amendments thereto and, as applicable, (i) all trust agreements, insurance contracts or other funding arrangements and amendments thereto, (ii) the current prospectus or summary plan description and all summaries of material modifications, (Aiii) the most recent annual report on Form 5500 filed with favorable determination or opinion letter from the U.S. Internal Revenue Service (the “IRS”), including all schedules thereto; (Biv) the most recent determination letter from recently filed annual return/report (Form 5500) and accompanying schedules and attachments thereto, (v) the IRS for any most recently prepared actuarial report and financial statements and (vi) if such plan is an International Plan, documents that are substantially comparable (taking into account differences in applicable Law and practices) to the documents required to be provided in clauses (i) through (v).
(c) Except as set forth on Schedule 3.17(c):
(i) No Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents is, and summary plan descriptions, or a written description of the terms of any no Group Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices has contributed to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
sponsored since January 1, 2010, (bi) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee multiemployer pension benefit plan” (as defined in Section 3(2Sections 3(37) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3ii) a “multiple employer plan” (as defined described in Section 4063 413(c) of the Code, and the Company has no obligation or 4064 liability in connection with any such “multiemployer plan” or “multiple employer plan”;
(ii) No Company Benefit Plan is, and no Group Company has contributed to or sponsored since January 1, 2010, an employee benefit plan subject to Section 302 or Title IV of ERISA or Section 412 of the Code, and no Group Company has, or is reasonably expected to have, any direct or indirect material liability under Title IV of ERISA).;
(ciii) No Company Benefit Plan is a defined benefit plan;
(iv) Each Company Benefit Plan has been maintainedestablished, administered and operated and administered, in all material respects, respects in compliance accordance with its terms and in compliance with all material applicable Law. Laws, including ERISA and the Code;
(v) No nonexempt liability, claim, action or litigation has been made, commenced or threatened since January 1, 2013 with respect to any Company Benefit Plan (other than routine claims for benefits payable in the Ordinary Course, and appeals of the denial of such claims);
(vi) Each Company Benefit Plan intended to be “prohibited transactionqualified” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(d401(a) As of the date hereof, there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefits.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect IRS, or is comprised of a master or prototype plan that has received a favorable opinion letter from the IRS, and nothing no event has occurred or is and no condition exists which would reasonably be expected to cause result in the loss revocation of any such determination letter or opinion letter, and each trust created under any such Company Benefit Plan is exempt from Tax under Section 501(a) of the Code and has been so exempt from its creation;
(vii) Each International Plan that (i) is intended to qualify for special tax treatment meets all the requirements for such treatment and (ii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles;
(viii) No Group Company has any current or projected liability for, and no Company Benefit Plan provides or promises, any post-employment or retiree welfare benefits (whether insured or self-insured) to any current or former Service Provider, except as required by applicable Laws;
(ix) No Group Company nor any other “disqualified person” or “party in interest” (as defined in Section 4975(e)(2) of the Code and Section 3(14) of ERISA, respectively) has engaged in any transactions since January 1, 2013 in connection with any Company Benefit Plan that would reasonably be expected to r esult in the imposition of a penalty pursuant to Section 502 of ERISA, damages pursuant to Section 409 of ERISA or a tax pursuant to Section 4975 of the Code;
(x) No Group Company has filed since January 1, 2013, or considered filing, an application under the IRS Employee Plans Compliance Resolution System or the Department of Labor’s Voluntary Fiduciary Correction Program with respect to any Company Benefit Plan;
(xi) All material contributions, premiums and payments that are due have been made for each Company Benefit Plan within the time periods prescribed by the terms of such qualification.plan and applicable Law, and all contributions, premiums and payments for any period ending on or before the Closing Date that are not due are properly accrued to the extent required to be accrued under applicable accounting principles;
(gxii) Neither There has been no amendment to, written interpretation of or announcement (whether or not written) by any Group Company relating to, or change in employee participation or coverage under, any Company Benefit Plan that would materially increase the execution or delivery expense of this Agreement, nor maintaining such plan above the level of expense incurred in respect thereof for the most recently completed fiscal year;
(xiii) The consummation of the Transactions will transactions contemplated by this Agreement (either alone or upon the occurrence of in combination with another event) shall not (i) entitle any additional Service Provider to severance, retention, retirement or subsequent events) (A) result change in control or any other payment or benefit becoming due benefit, (ii) accelerate the time of payment or payablevesting, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount of compensation or value of any benefit or compensation otherwise payable or required to be provided benefits due to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation Service Provider or (Diii) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of would reasonably be expected to not be deductible under Section 280G of the Code.;
(h) No person is entitled to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the Code.
(ixiv) Each Company Benefit Plan that which is a “nonqualified deferred compensation plan” (as defined in within the meaning of Section 409A(d)(1) 409A or 457A of the Code) that is subject has been timely amended (if applicable) to Section comply and has been operated and administered in compliance with, and all Group Companies have complied in practice and operation with, all applicable requirements of Sections 409A and 457A of the Code is in compliance in all material respects with Section and any proposed and final guidance under Sections 409A and 457A of the Code. No Group Company has any obligation to gross-up, indemnify or otherwise reimburse any current or former Service Provider of the Company for any Taxes incurred by such Service Provider, including under Section 409A, 457A or 4999 of the Code; and
(xv) All current and former employees of WIL Research Europe B.V. participate or have participated in the relevant Company Benefit Plan regarding pensions as stipulated in their employment agreements with WIL Research Europe B.V. or any legal predecessor thereof.
(jd) All contributions required In connection with the amendments to be made to any the Company Benefit Plan by Plans of WIL Research Europe B.V. (“WRE”) on January 1, 2014 and January 1, 2015: (i) “all-employee” meetings were held to inform the applicable Lawemployees of WRE of such amendments, any plan document or other contractual undertaking, and all premiums due or payable with respect (ii) such employees were provided a copy of written presentation materials setting forth in reasonable detail the changes to insurance policies funding any WRE’s Company Benefit PlanPlans, for any period through the date of this Agreement (iii) no objections have been timely made or paid raised by any such employee in full respect of such amendments, (iv) each such employee was informed in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements writing of the Company included effects of the changes in the Company SEC ReportDutch fiscal framework as of January 1, 2014 and January 1, 2015 and (v) the notice and negative consent process undertaken by WRE was completed diligently and in a customary manner.
Appears in 1 contract
Samples: Merger Agreement (Charles River Laboratories International Inc)
Company Benefit Plans. (a) Section 3.18(aSchedule 3.17(a) of the Company Disclosure Letter sets forth contains a true, correct and complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA and (ii) other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “all Company Benefit Plans”). As of the date hereof, with With respect to each Company Benefit Plan, the Company has provided Modern Media true, correct and complete copies of the following documents, to the extent applicable: (i) the plan document and any related trust documents, the Company has made available to Parent complete and accurate copies of amendments thereto; (Aii) the most recent annual report on Form 5500 filed with returns and the IRSmost recent actuarial report, including all schedules theretoif any; (Biii) the most recent determination IRS determination, opinion or advisory letter from (if any) or correspondence with the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the CodeUnited Kingdom Pensions Regulator; (Civ) the plan documents and summary plan descriptions, or a written description of the terms of and any Company Benefit Plan that is not in writingmaterial modifications thereto; and (Dv) any related trust agreements, insurance contracts, insurance policies contracts or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated Except as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).set forth on Schedule 3.17(b):
(ci) Each Company Benefit Plan and related trust has been maintainedestablished, operated and administered, in all material respects, funded and operated in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA Laws in all material respects, and Section 4975 of the Code has occurred all contributions, premiums, reimbursements, distributions or is reasonably expected payments required to occur be made with respect to any Company Benefit PlanPlan for all periods ending prior to or as of the Closing have been, or will be prior to the Closing, timely made.
(dii) As of No material (whether individually or in the date hereofaggregate) liability, there are no Legal Proceedings pending orAction, audit or investigation has been made, commenced or threatened with respect to the Knowledge of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, (other than routine claims for benefits.benefits payable in the Ordinary Course and appeals of denied such claims);
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(giii) Neither the execution or and delivery of this Agreement, Agreement nor the consummation of the Transactions will (either alone or upon the occurrence of in conjunction with any additional other event) will, directly or subsequent events) indirectly, (A) result in any material (whether individually or in the aggregate) payment (whether in cash, property or the vesting of property), benefit or other right becoming due or payable, or required to be provided, to any directorcurrent or former employee, employee officer, director or independent contractor of the Company or any of its SubsidiariesGroup Companies, (B) materially (whether individually or in the aggregate) increase the amount any compensation or value of any benefit or compensation benefits otherwise payable under any Company Benefit Plan or required to be provided to any such directorotherwise, employee or independent contractor, (C) result in the acceleration of the time of payment, funding or vesting or funding of any such benefit compensation, benefits, or compensation other rights under any such Company Benefit Plan or otherwise, or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in an obligation to fund or otherwise set aside assets to secure to any extent any of the payment of obligations under any amount Company Benefit Plan;
(iv) All benefits payable, or prospectively or contingently payable, under any Company Benefit Plan that could, individually or in combination with any other payment or benefit, constitute an provides for retirement benefits are “excess parachute paymentmoney purchase benefits” within the meaning of Section 280G section 181(1) of the Code.United Kingdom Xxxxxxx Xxxxxxx Xxx 0000;
(hv) All lump sum benefits (other than a refund of member contributions) payable under any Company Benefit Plan on the death of any Person whilst in employment to which the scheme relates are fully insured on normal terms with an insurance company (as defined in section 275 of United Kingdom Finance Act 2004) and all premiums and other amounts payable under such insurance contracts have been paid;
(vi) No person is entitled Group Company has, in relation to receive any additional payment (including any tax gross up payment) from the Company or any of its Subsidiaries as a result employees of the imposition Company, been involved in any transaction to which the United Kingdom Transfer of additional taxes Undertakings (Protection of Employment) Regulations 1981 or 2006, apply where any employees had previously had the right to membership of an occupational pension arrangement that provided any benefits other than those payable for old age, invalidity or death;
(vii) No contribution notice or financial support direction has been issued by the United Kingdom Pensions Regulator under Section 4999 sections 38 or Section 409A 43 of the Code.Xxxxxx Xxxxxxx Xxxxxxxx Xxx 0000 respectively against any Group Company and there is no fact or circumstance likely to give rise to any such direction or notice;
(iviii) No Group Company is liable for a debt arising or payable under sections 75 or 75A of the United Kingdom Pensions Xxx 0000; and
(A) Each Company Benefit Plan that is not subject to the laws of the United Kingdom (each, a “nonqualified deferred compensation plan” Company Foreign Benefit Plan”) has been established, maintained and administered in material compliance with its terms and applicable Laws and, if intended to qualify for special tax treatment, meets all the requirements for such treatment; (as defined B) all employer and employee contributions to each Company Foreign Benefit Plan required by its terms or by applicable Law have been made or, if applicable, accrued in Section 409A(d)(1accordance with generally accepted accounting practices in the applicable jurisdiction applied to such matters; (C) if the Company Foreign Benefit Plan is intended to qualify for special tax treatment, it meets all requirements for such treatment; and (D) if required, are registered and approved with any applicable Governmental Entity and (E) the fair market value of the Code) that is subject to Section 409A assets of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any each funded Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Foreign Benefit Plan, the liability of each insurer for any period Company Foreign Benefit Plan funded through insurance or the date book reserve established for any Company Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on with respect to all current and former participants in such plan according to the consolidated financial statements actuarial assumptions and valuations most recently used to determine employer contributions to such Company Foreign Benefit Plan, and no transaction shall cause such assets or insurance obligations to be less than such benefit obligations. No Company Foreign Benefit Plan is a defined benefit pension plan or provides post-employment health or life insurance benefits. Each Company Foreign Plan has the level of the Company included in the Company SEC Reportinsurance reserves that is reasonable and sufficient to provide for all incurred but unreported claims.
Appears in 1 contract
Samples: Business Transaction Agreement (Modern Media Acquisition Corp.)
Company Benefit Plans. (a) Section 3.18(a4.12(a) of the Company Disclosure Letter Schedule sets forth a complete and accurate correct list of each material of: (i) all “employee benefit plan” (plans”, as defined in Section 3(3) of ERISA, and all other employee benefit arrangements or payroll practices, including bonus plans, consulting or other compensation agreements, incentive, equity or equity-based compensation, or deferred compensation arrangements, membership interest purchase, severance pay, sick leave, vacation pay, salary continuation, disability, hospitalization, medical insurance, life insurance, scholarship programs maintained by the Company and its Subsidiaries or to which the Company contributed or is obligated to contribute thereunder for current or former employees of the Company (the “Employee Benefit Plans”), whether or not subject to ERISA and (ii) other employmentall “employee pension plans”, individual consultingas defined in Section 3(2) of ERISA, bonus, stock option, stock purchase subject to Title IV of ERISA or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”). As of the date hereof, with respect to each Company Benefit Plan, to the extent applicable, the Company has made available to Parent complete and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) 412 of the Code; (C) , maintained by the plan documents Seller and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be are or have ever been under common control, or which are or have ever been treated as a single employer employer, with the Company or any of its Subsidiaries under Section 414 414(b), (c), (m) or (o) of the Code maintains (“ERISA Affiliate”) or to which the Seller and any ERISA Affiliate contributed or has within ever been obligated to contribute thereunder (the last six (6“ERISA Affiliate Plans”). Section 4.12(a) years contributed to (1) an “employee pension benefit plan” (of the Disclosure Schedule separately sets forth each Company or ERISA Affiliate Plan which is a multiemployer plan as defined in Section 3(23(37) of ERISA, or has been subject to Sections 4063 or 4064 of ERISA.
(b) True, correct and complete copies of the following documents, with respect to each of the Employee Benefit Plans and ERISA Affiliate Plans (as applicable), have been delivered to the Purchaser (i) any plans and related trust documents, and all amendments thereto, (ii) the most recent Forms 5500 for the past three (3) years and schedules thereto, (iii) the most recent financial statements and actuarial valuations for the past three (3) years, (iv) the most recent IRS determination letter, (v) the most recent summary plan descriptions (including letters or other documents updating such descriptions) and (vi) written descriptions of all non-written agreements relating to the Employee Benefit Plans and ERISA Affiliate Plans.
(c) Each of the Employee Benefit Plans and ERISA Affiliate Plans intended to qualify under Section 401 of the Code (“Qualified Plans”) so qualify and the trusts maintained thereto are exempt from federal income taxation under Section 501 of the Code, and, except as disclosed on Schedule 4.12(c), nothing has occurred with respect to the operation of any such plan which could cause the loss of such qualification or exemption or the imposition of any liability, penalty or tax under ERISA or the Code.
(d) All contributions and premiums required by law or by the terms of any Employee Benefit Plan or ERISA Affiliate Plan or any agreement relating thereto have been timely made (without regard to any waivers granted with respect thereto) to any funds or trusts established thereunder or in connection therewith, and no accumulated funding deficiencies exist in any of such plans subject to Section 302 of ERISA, Section 412 of the Code Code, and all contributions for any period ending on or before the Closing Date which are not yet due will have been paid or accrued on the Company’s balance sheet on or prior to the Closing Date.
(e) The benefit liabilities, as defined in Section 4001(a)(16) of ERISA, of each of the Employee Benefit Plans and ERISA Affiliate Plans subject to Title IV of ERISA using the actuarial assumptions that would be used by the Pension Benefit Guaranty Corporation (in the event it terminated each such plan do not exceed the fair market value of the assets of each such plan. The liabilities of each Employee Benefit Plan that has been terminated or otherwise wound up, have been fully discharged in full compliance with applicable Law.
(f) There has been no “reportable event” as that term is defined in Section 4043 of ERISA and the regulations thereunder with respect to any of the Employee Benefit Plans or ERISA Affiliate Plans subject to Title IV of ERISA which would require the giving of notice, or any event requiring notice to be provided under Section 4041(c)(3)(C) or 4063(a) of ERISA.
(g) None of the Company, any ERISA Affiliate or any organization to which the Company is a successor or parent company, within the meaning of Section 4069(b) of ERISA, has engaged in any transaction, within the meaning of Section 4069 of ERISA.
(2h) None of the Employee Benefit Plans which are “welfare benefit plans” within the meaning of Section 3(1) of ERISA provide for continuing benefits or coverage for any participant or any beneficiary of a participant post-termination of employment except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) and at the expense of the participant or the participant’s beneficiary. Each of the Company and any ERISA Affiliate which maintains a “multiemployer group health plan” within the meaning of Section 4001(a)(35000(b)(1) of the Code has complied with the notice and continuation requirements of Section 4980B of the Code, COBRA, Part 6 of Subtitle B of Title I of ERISA and the regulations thereunder.
(i) There has been no violation of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 the Code with respect to the filing of applicable returns, reports, documents and notices regarding any of the Employee Benefit Plans or 4064 ERISA Affiliate Plans with the Secretary of ERISA)Labor or the Secretary of the Treasury or the furnishing of such notices or documents to the participants or beneficiaries of the Employee Benefit Plans or ERISA Affiliate Plans.
(cj) There are no pending Legal Proceedings which have been asserted or instituted against any of the Employee Benefit Plans or ERISA Affiliate Plans, the assets of any such plans or the Company, or the plan administrator or any fiduciary of the Employee Benefit Plans or ERISA Affiliate Plans with respect to the operation of such plans (other than routine, uncontested benefit claims), and there are no facts or circumstances which could form the basis for any such Legal Proceeding.
(k) Each Company of the Employee Benefit Plan Plans and ERISA Affiliate Plans has been maintained, operated and administered, in all material respects, in compliance accordance with its terms and with all provisions of applicable Law. No nonexempt All amendments and actions required to bring each of the Employee Benefit Plans and ERISA Affiliate Plans into conformity in all material respects with all of the applicable provisions of ERISA and other applicable Laws have been made or taken except to the extent that such amendments or actions are not required by Law to be made or taken until a date after the Closing Date and are disclosed on Section 4.12(k) of the Disclosure Schedule.
(l) The Seller and any ERISA Affiliate which maintains a “benefits plan” within the meaning of Section 5000(b)(1) of ERISA, have complied with the notice and continuation requirements of Section 4980B of the Code or Part 6 of Title I of ERISA and the applicable regulations thereunder.
(m) None of the Company or any ERISA Affiliate or any organization to which any is a successor or parent corporation, has divested any business or entity maintaining or sponsoring a defined benefit pension plan having unfunded benefit liabilities (within the meaning of Section 4001(a)(18) of ERISA) or transferred any such plan to any person other than the Seller or any ERISA Affiliate during the five-year period ending on the Closing Date.
(n) Neither the Company nor any “party in interest” or “disqualified person” with respect to the Employee Benefit Plans or ERISA Affiliate Plans has engaged in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur with respect to any Company Benefit PlanSection 406 of ERISA.
(do) As None of the date hereofCompany or any ERISA Affiliate has terminated any Employee Benefit Plan or ERISA Affiliate Plan subject to Title IV of ERISA, there are no Legal Proceedings pending or, or incurred any outstanding liability under Section 4062 of ERISA to the Knowledge Pension Benefit Guaranty Corporation or to a trustee appointed under Section 4042 of the Company, threatened on behalf of or against any Company Benefit Plan, the assets of any trust under any Company Benefit Plan, or the plan sponsor, plan administrator or any fiduciary or any Company Benefit Plan with respect to the administration or operation of such plans, other than routine claims for benefitsERISA.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(f) Each Company Benefit Plan that is intended to be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected to cause the loss of such qualification.
(gp) Neither the execution or and delivery of this Agreement, Agreement nor the consummation of the Transactions transactions contemplated hereby will (either alone or upon the occurrence of any additional or subsequent events) (Ai) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, Company; (Bii) increase the amount or value of any benefit or compensation benefits otherwise payable under any Employee Benefit Plan or required to be provided to any such director, employee ERISA Affiliate Plan; or independent contractor, (Ciii) result in the acceleration of the time of payment, payment or vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Codebenefits.
(hq) No person The Company is entitled not a party to receive any contract, plan or commitment, whether legally binding or not, to create any additional payment (including Employee Benefit Plan or ERISA Affiliate Plan, or to modify any tax gross up payment) from the Company existing Employee Benefit Plan or any of its Subsidiaries as a result of the imposition of additional taxes under Section 4999 or Section 409A of the CodePension Pan.
(ir) Each No membership interest or other security issued by the Company forms or has formed a material part of the assets of any Employee Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Codeor ERISA Affiliate Plan.
(js) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, Any individual who performs services for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in (other than through a contract with an organization other than such individual) and who is not treated as an employee for federal income Tax purposes by the Company SEC Reportis not an employee for such purposes.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Apollo Medical Holdings, Inc.)
Company Benefit Plans. (a) Section 3.18(aSchedule 5.13(a) of the Company Disclosure Letter sets forth a true and complete and accurate list of each material (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (including “multiemployer plans” as defined in Section 3(37) of ERISA), and any material stock purchase, stock option, severance, employment, individual consulting, retention, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, employee loan and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (except for (i) employment agreements and (ii) offer letters establishing at-will employment without obligating the Company to make any payment or provide any benefit upon termination of employment other employment, individual consulting, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit than through a plan, program, policy, arrangement or agreement listed on Schedule 5.13(a), (ii) any standard form employment agreements used outside of the United States and (iii) any statutorily required plan, agreement, contractprogram, policy or binding arrangement (whether other arrangement), which are contributed to, sponsored by or not in writing) maintained by the Company or contributed to any of their respective Subsidiaries for the benefit of any current or former employee, officer, director or individual consultant or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any current or future Liability (the each a “Company Benefit PlansPlan”). As of the date hereof, with .
(a) With respect to each Company Benefit Plan, to the extent applicable, the Company has delivered or made available to Parent complete and accurate SPAC copies of (Ai) each Company Benefit Plan and any trust agreement or other funding instrument relating to such plan, (ii) the most recent summary plan description, if any, required under ERISA with respect to such Company Benefit Plan, (iii) the most recent annual report on Form 5500 filed and all attachments with respect to each Company Benefit Plan (if applicable), (iv) the IRSmost recent actuarial valuation (if applicable) relating to such Company Benefit Plan, including all schedules thereto; and (Bv) the most recent determination letter from or opinion letter, if any, issued by the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither the Company, any of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer with the Company or any of its Subsidiaries under Section 414 of the Code maintains or has within the last six (6) years contributed to (1) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA).
(c) Each Company Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Law. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur Internal Revenue Service with respect to any Company Benefit Plan.
(db) As of Except as would not, individually or in the date hereofaggregate, there are no Legal Proceedings pending or, be material to the Knowledge of the CompanyCompany and its Subsidiaries, threatened on behalf of or against any taken as a whole, (i) each Company Benefit PlanPlan has been administered in material compliance with its terms and all applicable Laws, including ERISA and the assets of any trust under any Company Benefit PlanCode, or the plan sponsor, plan administrator or any fiduciary or and (ii) all contributions required to be made with respect to any Company Benefit Plan with on or before the date hereof have been made and all obligations in respect of each Company Benefit Plan as of the date hereof have been accrued and reflected in the Company’s financial statements to the administration or operation of such plans, other than routine claims for benefitsextent required by GAAP.
(e) No Company Benefit Plan provides for post-retirement or post-employment welfare benefits to former employees of the Company, other than pursuant to Section 4980B of the Code or any similar Law.
(fc) Each Company Benefit Plan that which is intended to be “qualified” under qualified within the meaning of Section 401 401(a) of the Code (i) has received a favorable determination or opinion letter from as to its qualification or (ii) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the IRS plan sponsor and is valid as to such effect and the adopting employer, and, to the knowledge of the Company, nothing has occurred occurred, whether by action or is failure to act, that could reasonably be expected to cause the loss of such qualification.
(gd) Neither Except as would not, individually or in the execution aggregate, be material to the Company and its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries has incurred any current or delivery projected liability in respect of this Agreementpost-employment or post-retirement health, nor the consummation medical or life insurance benefits for current, former or retired employees of the Transactions will (either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or except as required to avoid an excise tax under Section 4980B of the Code or otherwise except as may be provided required pursuant to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Codeapplicable Law.
(he) No person is entitled to receive any additional payment (including any tax gross up payment) from Neither the Company or nor any of its Subsidiaries as a result sponsored, maintained or was required to contribute to, at any point during the six year period prior to the date hereof, any plan subject to Title IV of the imposition of additional taxes under Section 4999 ERISA or Section 409A 412 or Section 4971 of the Code.
(i) Each Company Benefit Plan that is a , including any “nonqualified deferred compensation multiemployer plan” (as defined in Section 409A(d)(13(37) of ERISA.
(f) Neither the Codeexecution and delivery of this Agreement by the Company nor the consummation of the transactions contemplated hereby (whether alone or in connection with any subsequent event(s)) that will entitle any current or former employee, officer, director or consultant of the Company or its Subsidiaries to any material payment or benefit or accelerate the time of payment or vesting of any material compensation or benefits, in either case under any Employee Plan.
(g) Each Company Option and Company RSU was granted, in all material respects, in accordance with the terms of the Company Share Plans and in compliance with all applicable Laws. No Company Option is subject to Section 409A of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required to be made to any Company Benefit Plan by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects orand, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements knowledge of the Company, each Company included in Option intended to qualify as an “incentive stock option” under Section 422 of the Company SEC ReportCode so qualifies.
Appears in 1 contract
Company Benefit Plans. (a) Section 3.18(aSchedule 3.10(a) of the Company Disclosure Letter sets forth a all Company Benefit Plans by name, including all amendments thereto. The Company has made available to Parent complete and accurate list of each material correct copies of: (i) “employee benefit plan” (as defined in Section 3(3) of ERISA)the most recent determination letter or opinion letter, whether or not subject to ERISA and if any, received by a Group Company from the IRS regarding each Qualified Plan, (ii) other employmentall pending applications for rulings, individual consulting, bonus, stock option, stock purchase determinations or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plan, program, agreement, contract, policy or binding arrangement (whether or not in writing) maintained or contributed to for the benefit of any current or former employee, individual consultant or director of the Company or any of its Subsidiaries, or opinions with respect to which the Company or any of its Subsidiaries has any current or future Liability (the “Company Benefit Plans”Plan, if any, filed with any Governmental Entity (including the Department of Labor and the IRS). As of , (iii) the date hereoffinancial statements (if any) for each Company Benefit Plan for the two (2) most recent fiscal or Company Benefit Plan years for which such financial statements are available (in audited form if required by ERISA) and, where applicable, Annual Report/Returns (Forms 5500) with disclosure schedules, if any, and attachments for each Company Benefit Plan for the two (2) most recent fiscal or Company Benefit Plan years for which such Annual Report/Return (Form 5500) is available, (iv) the most recently prepared actuarial valuation report for each Company Benefit Plan (including reports prepared for funding, deduction and financial accounting purposes), if applicable, (v) Company Benefit Plan documents, trust agreements, insurance contracts, service agreements and all related contracts and documents (including any employee summaries and employee communications), with respect to each Company Benefit Plan, and (vi) collective bargaining agreements (including side agreements and letter agreements), if any, relating to the extent applicableestablishment, the Company has made available to Parent complete maintenance, funding and accurate copies of (A) the most recent annual report on Form 5500 filed with the IRS, including all schedules thereto; (B) the most recent determination letter from the IRS for any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms operation of any Company Benefit Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; and (E) any written notices to or from any Governmental Authority relating to any material compliance issues in respect of any such Company Benefit Plan.
(b) Neither All Qualified Plans and the Companytrusts (if any) forming a part thereof, any are so tax-qualified and have received or are subject to a favorable determination or opinion letter from the IRS as to their qualification under the Code and to the effect that each such trust is exempt from taxation under Section 501(a) of its Subsidiaries or any other trade or business (whether or not incorporated) which would be treated as a single employer the Code. All Company Benefit Plans comply with the Company or any requirements of its Subsidiaries under Section 414 of ERISA and the Code maintains or has within and all other applicable Law in all material respect. All Company Benefit Plans have been administered in all material respects in accordance with the last six (6) years contributed to (1) an “employee pension benefit plan” (documents and instruments governing the Company Benefit Plans. Except as defined in Section 3(2) of ERISAset forth on Schedule 3.10(b), subject all reports (including Form 5500) and filings with Governmental Entities (including the Department of Labor and the IRS) required in connection with each Company Benefit Plan have been timely made and all material disclosures required by applicable Law to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA, (2) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or (3) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA)be distributed to any Company Benefit Plan participant have been timely made.
(c) Each All contributions, premium payments and other payments required to be made in connection with the Company Benefit Plan has Plans as of the date of this Agreement have been maintained, operated and administered, in all material respects, in compliance with its terms and with all applicable Lawmade. No nonexempt “prohibited transaction” within the meaning of Section 406 of ERISA and Section 4975 of the Code has occurred or is reasonably expected to occur unfunded liabilities exist with respect to any Company Benefit PlanPlan other than those accrued on the Financial Statements in accordance with GAAP or arising since the Balance Sheet Date and required to be recorded as a current liability in accordance with GAAP.
(d) As of the date hereof, there are no Legal Proceedings pending or, to To the Knowledge of the Company, no material Action or claim is pending or threatened with regard to any Company Benefit Plan other than routine claims for benefits. The consummation of the transactions contemplated by this Agreement will not cause any Company Benefit Plan to increase benefits payable to any participant or beneficiary. Except as otherwise expressly provided in this Agreement or as set forth on behalf Schedule 3.10(d)(i), neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will: (i) entitle any current or against former employee of any Group Company to severance pay, unemployment compensation under any arrangement that is not required by applicable Law or to any other payment, benefit or award under any Company Benefit Plan, (ii) accelerate or modify the assets time of payment or vesting, or increase the amount of any trust benefit, award or compensation due any such employee under any Company Benefit Plan, or the plan sponsor(iii) result in any forgiveness of indebtedness, plan administrator or trigger any fiduciary or funding obligation under any Company Benefit Plan with respect or impose any restrictions or limitations on any Group Company’s rights to administer, amend or terminate any Company Benefit Plan. Except as set forth on Schedule 3.10(d)(ii), no amount or benefit that could be received (whether in cash, property or the administration vesting in cash or operation of such plans, other than routine claims for benefits.
(eproperty) No under any Company Benefit Plan provides for post-retirement as a result of or post-employment welfare benefits to former employees of in connection with the Company, transactions contemplated by this Agreement (whether or not some other than pursuant to Section 4980B of the Code subsequent action or any similar Law.
(f) Each Company Benefit Plan that is intended to event would be “qualified” under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and nothing has occurred or is reasonably expected required to cause the loss receipt of such qualification.
amount or benefit to occur) by any employee, officer or director of any Group Company who is a “disqualified individual” (gas such term is defined in Section 280G(c) Neither the execution or delivery of this Agreement, nor the consummation of the Transactions will (Code) will, either alone or upon the occurrence of any additional or subsequent events) (A) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of the Company or any of its Subsidiaries, (B) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (C) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (D) except as would not be material to the Company and its Subsidiaries taken as a whole, result in the payment of any amount that could, individually or in combination with any other payment amount or benefit, constitute an “excess parachute payment” within the meaning fail to be deductible for United States federal income tax purposes by virtue of Section 280G of the Code.
(h) . No person is entitled to receive any additional payment (including any tax gross gross-up or other payment) from the Company or any of its Subsidiaries as a result of the imposition of additional the excise taxes under required by Section 4999 of the Code or any taxes required by Section 409A of the Code. To the Knowledge of the Company, no Company Benefit Plan is currently under examination or audit by any Governmental Entity, including the Department of Labor or the IRS. No Company Benefit Plan is or ever has been a Multiemployer Plan, nor has any Group Company or any ERISA Affiliate been obligated to contribute to any such Multiemployer Plan at any time.
(e) Within the last six (6) years, no Group Company nor any of their ERISA Affiliates has maintained or established, contributed or been required to contribute to, participated in or required to participate in, or otherwise has been liable to any employee benefit plan program or arrangement (including any Multiemployer Plan) which is subject to Title IV or Section 409A 303 of ERISA or Section 412 of the Code. No Company Benefit Plan is a multiple employer welfare arrangement (as defined in Section 3(40)(A) of ERISA) or a multiple employer plan within the meaning of Section 413(c) of the Code.
(if) Each Except as set forth on Schedule 3.10(f), no Group Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined has any obligation to provide post-employment life insurance, death or medical benefits other than health care continuation benefits described in Section 409A(d)(1) of the Code) that is subject to Section 409A 4980B of the Code is in compliance in all material respects with Section 409A of the Code.
(j) All contributions required or any other similar Law. No legally binding commitments have been made by any Group Company to be made to improve or otherwise amend any Company Benefit Plan except as required by applicable Law, any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date of this Agreement have been timely made or paid in full in all material respects or, to the extent not required to be made or paid on or before the date of this Agreement, have been fully reflected on the consolidated financial statements of the Company included in the Company SEC Report.
Appears in 1 contract
