Company Benefit Plans. (a) Section 4.14(a) of the Company Disclosure Letter sets forth a complete list of each “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, except for (i) offer letter agreements and employment agreements providing for employment terminable at will without advance notice, penalty, or severance obligation, (ii) independent contractor agreements and consulting agreements terminable on 30 days’ notice or less, and (iii) individual stock option agreements that do not contain vesting acceleration provisions, provided that in the case of clauses (i) and (ii) above, such agreements do not contain any retention bonus, change in control, or vesting acceleration provisions under which the Company has any outstanding compensatory obligations or liability (contingent or otherwise)) providing compensation or benefits to any current or former director, officer, consultant or employee, which are maintained, sponsored or 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 (whether written or unwritten), 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 Plan”). The Company has delivered 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 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 4.14(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 have been made and all obligations in respect of each Company Benefit Plan 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 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. (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, 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 to the knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims. (e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company or any Subsidiary for periods extending beyond their retirement or other termination of service, other than (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). (f) Except as set forth on Section 4.14(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 of employment 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 payable by the Company or any Subsidiary of the Company, except as expressly provided in this Agreement, (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation due any such employee, officer or other individual service provider by the Company or a Subsidiary of the Company or (iii) result in any “excess parachute payment” under Section 280G of the Code. 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.
Appears in 2 contracts
Samples: Merger Agreement (Xos, Inc.), Merger Agreement (NextGen Acquisition Corp)
Company Benefit Plans. (a) Section 4.14(a4.13(a) of the Company Disclosure Letter sets forth a true and complete list list, as of the date hereof, of 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 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, except for (i) offer letter agreements and employment agreements providing for employment terminable at will without advance notice, penalty, or severance obligation, (ii) independent contractor agreements and consulting agreements terminable on 30 days’ notice or less, and (iii) individual stock option agreements that do not contain vesting acceleration provisions, provided that in the case of clauses (i) and (ii) above, such agreements do not contain any retention bonus, change in control, or vesting acceleration provisions under which the Company has any outstanding compensatory obligations or liability (contingent or otherwise)) providing compensation or other benefits to any current or former director, officer, consultant individual consultant, worker or employee, which are maintained, sponsored or 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 liability, and in each case, whether or not (whether written i) subject to the Laws of the United States, (ii) in writing or unwritten)(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 Plan”)) and separately denotes with an asterisk each Non-U.S. Plan. The Company has delivered to AcquirorSPAC, 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, modifications (C) the three (3) 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 in Section 4.14(b4.13(b) of the Company Disclosure Letter, : (i) to the knowledge of the Company, 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 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 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, 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 to the knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company or any Subsidiary for periods extending beyond their retirement or other termination of service, other than (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). To the knowledge of the Company, no condition exists that would prevent the Company or any Subsidiary of the 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 Subsidiary of the Company (other than in accordance with the applicable Company Benefit Plan).
(f) Except as set forth on in Section 4.14(f4.13(f) of the Company Disclosure Letter, the consummation of the transactions contemplated hereby Transactions will not, either alone or in combination with another event (such as termination of employment following the consummation of the transactions contemplated herebyTransactions), (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, (ii) directly or indirectly cause the Company to transfer or set aside any assets to fund any material benefits under any Company Benefit Plan, (iii) accelerate the time of payment, funding or vesting, or increase the amount of compensation or benefits (including in respect of Company Options) due any such employee, officer or other individual service provider by the Company or a Subsidiary of the Company Company, or (iiiiv) limit or restrict the right to merge, materially amend, terminate or transfer the assets of any Company Benefit Plan at or in connection with the consummation of the Transactions. The consummation of the Transactions will not, either alone or in combination with another event, result in any “excess parachute payment” under Section 280G of the CodeCode 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 CodeCode or otherwise.
(g) 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 subject to the Laws of any jurisdiction outside the United States which provides retirement benefits is a defined contribution plan.
Appears in 1 contract
Samples: Business Combination Agreement (HH&L Acquisition Co.)
Company Benefit Plans. (a) Section 4.14(a4.13(a) of the Company Disclosure Letter sets forth a complete list list, as of the date hereof, of each 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”) and or any other plan, policy, program or agreement (including any employment, bonus, incentive or deferred compensation, employee loan, note or pledge agreement, equity or equity-based compensation, severance, retention, supplemental retirement, change in control or similar plan, policy, program or agreement, except for (i) offer letter agreements and employment agreements providing for employment terminable at will without advance notice, penalty, or severance obligation, (ii) independent contractor agreements and consulting agreements terminable on 30 days’ notice or less, and (iii) individual stock option agreements that do not contain vesting acceleration provisions, provided that in the case of clauses (i) and (ii) above, such agreements do not contain any retention bonus, change in control, or vesting acceleration provisions under which the Company has any outstanding compensatory obligations or liability (contingent or otherwise)) providing compensation or other benefits to any current or former director, officer, consultant individual consultant, worker or employee, which are maintained, sponsored or 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 liability, and in each case whether or not (whether written i) subject to the Laws of the United States, (ii) in writing or unwritten)(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 “Authority. With respect to each Company Benefit Plan”). The , the Company has delivered 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), including ) 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 three (3) 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 4.14(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 have been made and all obligations in respect of each Company Benefit Plan 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 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.
(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, 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 to the knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company or any Subsidiary for periods extending beyond their retirement or other termination of service, other than (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).
(f) Except as set forth on Section 4.14(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 of employment 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 payable by the Company or any Subsidiary of the Company, except as expressly provided in this Agreement, (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation due any such employee, officer or other individual service provider by the Company or a Subsidiary of the Company or (iii) result in any “excess parachute payment” under Section 280G of the Code. 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.
Appears in 1 contract
Samples: Merger Agreement (ACE Convergence Acquisition Corp.)
Company Benefit Plans. (a) Section 4.14(a4.13(a) of the Company Disclosure Letter sets forth a true and complete list list, as of the date hereof, of each material “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, except for (i) offer letter agreements and employment agreements providing for employment terminable at will without advance notice, penalty, or severance obligation, (ii) independent contractor agreements and consulting agreements terminable on 30 days’ notice or less, and (iii) individual stock option agreements that do not contain vesting acceleration provisions, provided that in the case of clauses (i) and (ii) above, such agreements do not contain any retention bonus, change in control, or vesting acceleration provisions under which the Company has any outstanding compensatory obligations or liability (contingent or otherwise)) providing compensation or other benefits to any current or former director, officer, consultant individual consultant, worker or employee, which are maintained, sponsored or 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 liability, and in each case whether or not (whether written i) subject to the Laws of the United States, (ii) in writing or unwritten)(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 Plan”)) and separately denotes with an asterisk each Non-U.S. Plan. The Company has delivered to AcquirorSPAC, 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, 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 in Section 4.14(b4.13(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) 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; and (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.
(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 three (63) 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 Except as would not result in a Company Material Adverse Effect, with respect to each Company Benefit Plan, 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 to the knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death medical or similar benefits (whether or not insured) for employees or former employees of the Company or any Subsidiary for periods extending beyond their retirement or other termination of service, other than (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 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 Subsidiary of the Company (other than in accordance with the applicable Company Benefit Plan).
(f) Except as set forth on Section 4.14(f4.13(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 of employment 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 material 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 Options) due any such employee, officer or other individual service provider by the Company or a Subsidiary of the Company Company. The consummation of the transactions contemplated hereby will not, either alone or (iii) in combination with another event, result in any “excess parachute payment” under Section 280G of the CodeCode 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.
(g) Except as would result in a Company Material Adverse Effect, 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, or if not required by any source to be fully funded are lawfully accrued on the Company’s financial statements as of the date of such financial statements, including any back-service obligations, on an ongoing and termination or solvency basis (determined using reasonable actuarial assumptions) in compliance with applicable Laws.
Appears in 1 contract
Samples: Business Combination Agreement (TWC Tech Holdings II Corp.)
Company Benefit Plans. (a) Section 4.14(aSchedule 4.16(a) of the Company Disclosure Letter sets forth contains a true and complete list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, 1974 (as amended, (and including the regulations thereunder, “ERISA”) ), whether or not written and any other planwhether or not subject to ERISA, policyand each supplemental retirement, program or agreement (including any compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, incentive or deferred compensation, equity or equity-based compensation, severance, retention, supplemental retirement, change in control or similar plan, policy, program or agreement, except for (i) offer letter agreements and employment agreements providing for employment terminable at will without advance notice, penalty, or severance obligation, (ii) independent contractor agreements and consulting agreements terminable on 30 days’ notice or less, and (iii) individual stock option agreements that do not contain vesting acceleration provisions, provided that in the case of clauses (i) and (ii) above, such agreements do not contain any retention bonus, change in control, retention, severance, salary continuation, and other similar agreement, plan, policy, program, practice, or vesting acceleration provisions arrangement which is or has been established, maintained, sponsored, or contributed to by the Company or under which the Company has or may have any outstanding compensatory obligations or liability (contingent each, a “Benefit Plan”).
(b) For each Benefit Plan, accurate, current, and complete copies of each of the following have been made available to Purchaser: (i) the plan document with all amendments, or otherwiseif not reduced to writing, a written summary of all material plan terms; (ii) any written contracts and arrangements related to such Benefit Plan, including trust agreements or other funding arrangements, and insurance policies, certificates, and contracts; (iii) in the case of a Benefit Plan intended to be qualified under Section 401(a) of the Code, the most recent favorable determination or national office approval letter issued by the Internal Revenue Service and any legal opinions issued thereafter with respect to the Benefit Plan's continued qualification; (iv) the most recent Form 5500 filed with respect to such Benefit Plan; and (v) any material notices, audits, inquiries, or other correspondence from, or filings with, any Governmental Entity or authority relating to the Benefit Plan.
(c) Each Benefit Plan and related trust has been established, administered, and maintained in accordance with its terms and in compliance with all applicable Laws (including ERISA and Section 1445 of the Internal Revenue Code of 1986 (as amended, the “Code”). Nothing has occurred with respect to any Benefit Plan that has subjected or could subject the Company or, with respect to any period on or after the Closing Date, Purchaser or any of its Affiliates, to a civil action, penalty, surcharge, or Tax under applicable Law or which would jeopardize the previously-determined qualified status of any Benefit Plan. All benefits, contributions, and premiums relating to each Benefit Plan have been timely paid in accordance with the terms of such Benefit Plan and all applicable Laws and accounting principles. Benefits accrued under any unfunded Benefit Plan have been paid, accrued, or adequately reserved for to the extent required by GAAP.
(d) providing compensation The Company has not incurred and does not reasonably expect to incur: (i) any under Title I or Title IV of ERISA, any related provisions of the Code, or applicable Law relating to any Benefit Plan; or (ii) any liability to the Pension Benefit Guaranty Corporation. No complete or partial termination of any Benefit Plan has occurred or is expected to occur.
(e) The Company has not now or at any time within the previous six years contributed to, sponsored, or maintained: (i) any “multiemployer plan” as defined in Section 3(37) of ERISA; (ii) any “single-employer plan” as defined in Section 4001(a)(15) of ERISA; (iii) any “multiple employer plan” as defined in Section 413(c) of the Code; (iv) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA; (v) a leveraged employee stock ownership plan described in Section 4975(e)(7) of the Code; or (vi) any other Benefit Plan subject to required minimum funding requirements.
(f) Other than as required under Sections 601 to 608 of ERISA or other applicable Law, no Benefit Plan provides post-termination or retiree welfare benefits to any individual for any reason.
(g) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will, either alone or in combination with any other event: (i) entitle any current or former director, officer, consultant or employee, which are maintained, sponsored or contributed to by the Company or any of the Company’s Subsidiariesindependent contractor, or to which the Company or any of the Company’s Subsidiaries is a party or has or may have any liability (whether written or unwritten), 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 Plan”). The Company has delivered 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 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 4.14(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 have been made and all obligations in respect of each Company Benefit Plan 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 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.
(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, 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 to the knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company or any Subsidiary for periods extending beyond their retirement or other termination of service, other than (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).
(f) Except as set forth on Section 4.14(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 of employment 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 consultant of the Company to any severance pay pay, increase in severance pay, or any other compensation payable by the Company or any Subsidiary of the Company, except as expressly provided in this Agreement, payment; (ii) accelerate the time of payment, funding funding, or vesting, or increase the amount of compensation (including stock-based compensation) due to any such employee, officer individual; (iii) limit or other individual service provider by restrict the Company or a Subsidiary right of the Company to amend or terminate any Benefit Plan; (iiiiv) increase the amount payable under any Benefit Plan; (v) result in any “excess parachute paymentpayments” under within the meaning of Section 280G 280G(b) of the Code. No Company Benefit Plan provides for ; or (vi) require a Tax “gross-up, make whole ” or similar other payment with respect to any “disqualified individual” within the Taxes imposed under Sections 409A or 4999 meaning of Section 280G(c) of the Code.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (CV Sciences, Inc.)
Company Benefit Plans. (a) Section 4.14(aSchedule 4.17(a) of the Company Disclosure Letter sets forth contains a true, correct and complete list of each “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, except for (i) offer letter agreements and employment agreements providing for employment terminable at will without advance notice, penalty, or severance obligation, (ii) independent contractor agreements and consulting agreements terminable on 30 days’ notice or less, and (iii) individual stock option agreements that do not contain vesting acceleration provisions, provided that in the case of clauses (i) and (ii) above, such agreements do not contain any retention bonus, change in control, or vesting acceleration provisions under which the Company has any outstanding compensatory obligations or liability (contingent or otherwise)) providing compensation or benefits to any current or former director, officer, consultant or employee, which are maintained, sponsored or 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 (whether written or unwritten), 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 Plan and ERISA Affiliate Plan”). The Company has delivered .
(b) With respect to Acquiror, to the extent applicable, true, complete and correct copies of (A) each Company Benefit Plan and ERISA Affiliate Plan identified on Schedule 4.17(a), the Company has heretofore made available to the Purchaser, in each case where existing and in the Company’s possession, true, correct and complete copies of the plan documents and any amendments thereto (or, if in the event the plan is not written written, a written summary of its material termsdescription thereof), including all plan documents, trust agreementsany related trust, insurance Contracts contract or other funding vehicles and vehicle, any reports or summaries required under all amendments thereto, (B) the most recent summary plan descriptionsapplicable Laws, including any summary of material modificationsERISA or the Code, and (C) the most recent annual reports (Form 5500 series) filed with the IRS with respect to such each current Company Benefit Plan, (DPlan or ERISA Affiliate Plan intended to qualify under Code Section 401) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, and following: (Ei) the most recent determination or opinion letterletter received from the IRS, if any(ii) nondiscrimination and coverage tests for the most recent three (3) full plan years, issued by (iii) the three (3) most recent annual reports (Form 5500) filed with the IRS and financial statements (if applicable), and (iv) the three (3) most recent actuarial reports or valuations (if applicable). As to any Company Benefit Plan that is a Welfare Plan as defined in ERISA, the Company has also made available the three most recent annual reports (Form 5500) filed with the IRS and financial statements (if applicable). Additionally, the Company has made available or will make available such other documentation with respect to any Company Benefit Plan or ERISA Affiliate Plan (whether current or not) as has been reasonably requested by the Purchaser. Since approximately 2002, the Company and any pending request for such a determination letterthe Subsidiaries have not maintained an employee handbook.
(bc) Except as set forth on Section 4.14(b) The records of the Company Disclosure Letterand each Subsidiary accurately reflect, (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 have been made and all obligations in respect of each Company Benefit Plan 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 has received a favorable determination employment 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.
(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 service histories of its ERISA Affiliates has sponsored or contributed toemployees, been required to contribute toindependent contractors, or had any actual or contingent liability underworkers and leased employees, a Multiemployer Plan or Title IV Plan at any time within the previous six (6) years. Neither the Company nor any including their hours of its ERISA Affiliates has incurred any withdrawal liability under Section 4201 of ERISA that has not been fully satisfiedservice.
(d) With respect to each Company Benefit Plan, (i) there has not occurred any non-exempt “prohibited transaction” within the meaning of Section 4975(c) of the Code or Section 406 of ERISA that would subject the Company, a Subsidiary or the Purchaser to any material liability; and (ii) no fiduciary (within the meaning of Section 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 Company or the Purchaser to any material actionsliability. Neither the Company nor any Subsidiary has incurred any excise taxes under Chapter 43 of the Code and nothing has occurred with respect to any Company Benefit Plan that would reasonably be expected to subject the Company, suits a Subsidiary or claims the Purchaser 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, a Subsidiary or any of its or their 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.
(e) 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 and each Subsidiary have performed and complied in all material respects with all of their obligations under or with respect to the Company Benefit Plans. Neither the Company nor any Subsidiary has incurred, and, to the Knowledge of the Company, no fact exists that reasonably could be expected to result in, any liability to the Company or any Subsidiary 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 routine claims for to pay premiums, contributions or benefits in the ordinary coursecourse of business consistent with past practice). There are no current or, to the Knowledge of the Company, threatened Liens on any assets of any Company Benefit Plan or ERISA Affiliate Plan.
(f) To the Knowledge of the Company, no fact or circumstance exists that could 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.
(g) There is no pending or, to the knowledge Knowledge of the Company, threatenedthreatened (i) complaint, claim, charge, suit, proceeding or other action of 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, examination, audit, inquiry, investigation, citation, or other action of any kind in or before any Governmental Entity with respect to any Company Benefit Plan or ERISA Affiliate Plan and, to the knowledge Knowledge of the Company, there exists no state of facts that after notice or circumstances exist that would lapse of time or both reasonably could be expected to give rise to any such actionsclaim, suits investigation, examination, audit or claimsother 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.
(eh) No 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 Financial Statements. Adequate reserves will be reflected on the Final Working Capital Schedule for any vacation, sick pay, and other paid time off (i) accrued but unearned or (ii) earned but unused, in each case as of the Closing Date by the employees of the Company and the Subsidiaries.
(i) Except as set forth on Schedule 4.17(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 and the Subsidiaries 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, pursuant to which the health maintenance organization bears the liability for claims or (iii) reflected as a liability or accrued for on the Financial Statements. Except as set forth on Schedule 4.17(i), no Company Benefit Plan provides medicalor has ever provided benefits, surgicalincluding death, hospitalization, death medical or similar health benefits (whether or not insured) for employees or former employees ), after an employee’s termination of employment, and neither the Company or nor any Subsidiary for periods extending beyond their retirement has any liabilities (contingent or other termination of service, otherwise) with respect thereto other than (iA) continuation coverage mandated by applicable Lawrequired pursuant to Section 4980B of the Code and Part 6 of Title I of ERISA, and the regulations thereunder, and any other Applicable Benefit Laws, (iiB) death benefits or retirement benefits under any “employee pension benefit plan,” , (C) deferred compensation benefits, reflected as liabilities on the Financial Statements, or (iiiD) benefits the full cost of which is borne by the current or former employee (or his or her the employee’s beneficiary).
(fj) Except as set forth on Section 4.14(f) of the Company Disclosure Letter, the consummation of the The transactions contemplated hereby by this Agreement will not, not result (either alone or in combination with another event (such as termination of employment following the consummation of the transactions contemplated hereby), any other event) in: (i) entitle any current payment of, or former increase in, remuneration or benefits, to any employee, officer officer, director or other service provider consultant of the Company or any Subsidiary Subsidiary; or (ii) any cancellation of the Company indebtedness owed to any severance pay or any other compensation payable by the Company or any Subsidiary of the Company, except as expressly provided in this Agreement, (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation due by any such employee, officer officer, director or other individual service provider by the Company or a Subsidiary consultant of the Company or any Subsidiary; (iii) the acceleration of the vesting, funding or time of any payment or benefit to any employee, officer, director or consultant of the Company or any Subsidiary; or (iv) result in any “excess parachute payment” under within the meaning of Section 280G of the CodeCode (whether or not such payment is considered to be reasonable compensation for services rendered).
(k) Neither the Company nor any Subsidiary has announced 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. No Each Company Benefit Plan provides for may be amended or terminated in accordance with its terms without liability to the Company, any Subsidiary or the Purchaser.
(l) Schedule 4.17(l) identifies each Company Benefit Plan that is a Tax gross“nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and associated Treasury Department guidance, including IRS Notice 2005-up, make whole or similar payment with 1 (each a “NQDC Plan”). With respect to each NQDC Plan, it either (A) has complied with Code Section 409A since January 1, 2005, or (B) does not provide for the Taxes imposed under Sections 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 or 4999 of the CodeCode and associated Treasury Department guidance, including IRS Notice 2005-1, Q&A 18.
Appears in 1 contract
Company Benefit Plans. (a) Section 4.14(aSchedule 4.16(a) of the Company Disclosure Letter sets forth contains a true and complete list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, 1974 (as amended, (and including the regulations thereunder, “ERISA”) ), whether or not written and any other planwhether or not subject to ERISA, policyand each supplemental retirement, program or agreement (including any compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, incentive or deferred compensation, equity or equity-based compensation, severance, retention, supplemental retirement, change in control or similar plan, policy, program or agreement, except for (i) offer letter agreements and employment agreements providing for employment terminable at will without advance notice, penalty, or severance obligation, (ii) independent contractor agreements and consulting agreements terminable on 30 days’ notice or less, and (iii) individual stock option agreements that do not contain vesting acceleration provisions, provided that in the case of clauses (i) and (ii) above, such agreements do not contain any retention bonus, change in control, retention, severance, salary continuation, and other similar agreement, plan, policy, program, practice, or vesting acceleration provisions arrangement which is or has been established, maintained, sponsored, or contributed to by the Company or under which the Company has or may have any outstanding compensatory obligations or liability (contingent each, a “Benefit Plan”).
(b) For each Benefit Plan, accurate, current, and complete copies of each of the following have been made available to Purchaser: (i) the plan document with all amendments, or otherwiseif not reduced to writing, a written summary of all material plan terms; (ii) any written contracts and arrangements related to such Benefit Plan, including trust agreements or other funding arrangements, and insurance policies, certificates, and contracts; (iii) in the case of a Benefit Plan intended to be qualified under Section 401(a) of the Code, the most recent favorable determination or national office approval letter issued by the Internal Revenue Service and any legal opinions issued thereafter with respect to the Benefit Plan's continued qualification; (iv) the most recent Form 5500 filed with respect to such Benefit Plan; and (v) any material notices, audits, inquiries, or other correspondence from, or filings with, any Governmental Entity or authority relating to the Benefit Plan.
(c) Each Benefit Plan and related trust has been established, administered, and maintained in accordance with its terms and in compliance with all applicable Laws (including ERISA and Section 1445 of the Internal Revenue Code of 1986 (as amended, the “Code”). Nothing has occurred with respect to any Benefit Plan that has subjected or could subject the Company or, with respect to any period on or after the Closing Date, Purchaser or any of its Affiliates, to a civil action, penalty, surcharge, or Tax under applicable Law or which would jeopardize the previously-determined qualified status of any Benefit Plan. All benefits, contributions, and premiums relating to each Benefit Plan have been timely paid in accordance with the terms of such Benefit Plan and all applicable Laws and accounting principles. Benefits accrued under any unfunded Benefit Plan have been paid, accrued, or adequately reserved for to the extent required by GAAP.
(d) providing compensation The Company has not incurred and does not reasonably expect to incur: (i) any under Title I or Title IV of ERISA, any related provisions of the Code, or applicable Law relating to any Benefit Plan; or (ii) any liability to the Pension Benefit Guaranty Corporation. No complete or partial termination of any Benefit Plan has occurred or is expected to occur.
(e) The Company has not now or at any time within the previous six years contributed to, sponsored, or maintained: (i) any “multiemployer plan” as defined in Section 3(37) of ERISA; (ii) any “single-employer plan” as defined in Section 4001(a)(15) of ERISA; (iii) any “multiple employer plan” as defined in Section 413(c) of the Code; (iv) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA; (v) a leveraged employee stock ownership plan described in Section 4975(e)(7) of the Code; or (vi) any other Benefit Plan subject to required minimum funding requirements.
(f) Other than as required under Sections 601 to 608 of ERISA or other applicable Law, no Benefit Plan provides post-termination or retiree welfare benefits to any individual for any reason.
(g) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will, either alone or in combination with any other event: (i) entitle any current or former director, officer, consultant or employee, which are maintained, sponsored or contributed to by the Company or any of the Company’s Subsidiariesindependent contractor, or to which the Company or any of the Company’s Subsidiaries is a party or has or may have any liability (whether written or unwritten), 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 Plan”). The Company has delivered 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 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 4.14(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 have been made and all obligations in respect of each Company Benefit Plan 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 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.
(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, 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 to the knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company or any Subsidiary for periods extending beyond their retirement or other termination of service, other than (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).
(f) Except as set forth on Section 4.14(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 of employment 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 consultant of the Company to any severance pay pay, increase in severance pay, or any other compensation payable by the Company or any Subsidiary of the Company, except as expressly provided in this Agreement, payment; (ii) accelerate the time of payment, funding funding, or vesting, or increase the amount of compensation (including stock-based compensation) due to any such employee, officer individual; (iii) limit or other individual service provider by restrict the Company or a Subsidiary right of the Company to amend or terminate any Benefit Plan; (iiiiv) increase the amount payable under any Benefit Plan; (v) result in any “excess parachute paymentpayments” under within the meaning of Section 280G 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code. 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[Intentionally Omitted].
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (CV Sciences, Inc.)
Company Benefit Plans. (a) Section 4.14(a) of the Company Disclosure Letter Schedule 4.13 sets forth a complete list of each material “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, amended (“ERISA”) ), and any other material plan, policy, policy or 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, except for (i) offer letter agreements and employment agreements providing for employment terminable at will without advance notice, penalty, or severance obligation, (ii) independent contractor agreements and consulting agreements terminable on 30 days’ notice or less, and (iii) individual stock option agreements that do not contain vesting acceleration provisions, provided that in the case of clauses (i) and (ii) above, such agreements do not contain any retention bonus, change in control, or vesting acceleration provisions under which the Company has any outstanding compensatory obligations or liability (contingent or otherwise)) providing compensation or other benefits to any current or former director, officer, consultant officer or employeeemployee of the Company or any of its Subsidiaries, which are is maintained, sponsored or contributed to by the Company or any of the Company’s Subsidiaries, or to its Subsidiaries and under which the Company or any of the Company’s its Subsidiaries is a party has any obligation or has liability, excluding any plan or may have any liability (whether written or unwritten), but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained sponsored solely by any a Governmental Authority (each, each a “Company Benefit Plan”). The Notwithstanding the foregoing, Schedule 4.13 need not 041945-0274-16051-Active.21513949.1 identify an employment agreement if such employment agreement (i) relates to an employee whose base salary does not exceed $400,000 or (ii)(A) relates to an employee working outside the United States, (B) does not differ materially from a form that is identified on Schedule 4.13 and (C) does not provide any severance or notice period in excess of 90 days or such longer period as may be required by applicable Laws.
(b) With respect to each Company Benefit Plan, the Company has delivered or made available to Acquiror, to the extent applicable, true, complete and correct Buyer or its representatives copies of (Ai) each such Company Benefit Plan (or, if not written a written summary of its material terms), including all plan documents, and any trust agreements, insurance Contracts or other funding vehicles and all amendments theretoagreement relating to such plan, (Bii) the most recent summary plan descriptions, including any description for such Company Benefit Plan for which such summary of material modificationsplan description is required, (Ciii) the most recent annual reports (report on Form 5500 series) and all attachments thereto filed with the IRS Internal Revenue Service with respect to such Company Benefit Plan, Plan (Dif applicable) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, and (Eiv) the most recent determination or opinion letter, if any, issued by the IRS Internal Revenue Service with respect to any such Company Benefit Plan and any pending request for such a determination letterPlan.
(bc) Except as set forth would not reasonably be expected to have a Material Adverse Effect on Section 4.14(b) of the Company Disclosure Letter, Company: (i) each Company Benefit Plan has been operated and administered in material compliance accordance 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 have been accrued and reflected in the Company’s financial statements to the extent required by GAAPmade; 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 from the IRS as to its qualification qualification, (B) has been established under a standardized master and prototype or may rely upon an 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 prototype plan and, determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter within 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 Planremedial amendment period.
(cd) No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other pension plan plan, in each case, that is subject to Title IV of ERISA (“Title IV Plan”) and neither the Company nor any of its ERISA Affiliates Subsidiaries has sponsored or contributed to, to or been required to contribute to, or had any actual or contingent liability under, to a Multiemployer Plan or other pension plan subject to Title IV Plan of ERISA 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.
(de) With Except as would not reasonably be expected to have a Material Adverse Effect on the Company, with respect to each the Company Benefit PlanPlans, (i) as of the date hereof, 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 actions, suits or claims.
(ef) No Company Benefit Plan provides medicalexists that, surgicalas a result of the execution of this Agreement, hospitalizationshareholder approval of this Agreement, death or similar benefits consummation of the transactions contemplated by this Agreement (whether alone or not insuredin connection with any subsequent event(s)) for employees could reasonably be expected to, except as set forth in Sections 3.1(d) or former employees 3.2(a): (i) entitle any employee, director, officer or independent contractor of the Company or any Subsidiary for periods extending beyond their retirement or other termination of serviceits Subsidiaries to severance pay, other than (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).
(f) Except as set forth on Section 4.14(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 of employment 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 unemployment compensation or any other compensation payable by the Company payment or any Subsidiary of the Company, except as expressly provided in this Agreementbenefit, (ii) accelerate the time of payment, funding payment or vesting, or increase the amount of compensation or benefit due to any such 041945-0274-16051-Active.21513949.1 employee, director, officer or other individual service provider by independent contractor, (iii) require the Company to transfer or a Subsidiary set aside any assets to fund any benefits under any Company Benefit Plan, (iv) otherwise give rise to any material liability under any Company Benefit Plan, (v) limit or restrict the right to amend, terminate or transfer the assets of any Company Benefit Plan on or following the Company Closing Date or (iiivi) result in any payment or benefit that would constitute an “excess parachute payment” under (as such term is defined in Section 280G 280G(b)(1) of the Code. No Company Benefit Plan provides for a Tax gross-up) to any current or former employee, make whole director, officer or similar payment with respect to the Taxes imposed under Sections 409A or 4999 independent contractor of the CodeCompany or any of its Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (PPD, Inc.)
Company Benefit Plans. (a) Section 4.14(a4.13(a) of the Company Disclosure Letter sets forth a complete list list, as of the date hereof, of each 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, 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, except for (i) offer letter agreements and employment agreements providing for employment terminable at will without advance notice, penalty, or severance obligation, (ii) independent contractor agreements and consulting agreements terminable on 30 days’ notice or less, and (iii) individual stock option agreements that do not contain vesting acceleration provisions, provided that in the case of clauses (i) and (ii) above, such agreements do not contain any retention bonus, change in control, or vesting acceleration provisions under which the Company has any outstanding compensatory obligations or liability (contingent or otherwise)) providing compensation or other benefits to any current or former director, officer, consultant individual consultant, worker or employee, which are maintained, sponsored or 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 liability, and in each case whether or not (whether written i) subject to the Laws of the United States, (ii) in writing or unwritten)(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 Plan”). The Company has delivered to AcquirorParent, 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, modifications (C) the three (3) 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 4.14(b4.13(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) 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; and (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, 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 to the knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company or any Subsidiary for periods extending beyond their retirement or other termination of service, other than (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 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 Subsidiary of the Company (other than in accordance with the applicable Company Benefit Plan).
(f) Except as set forth on Section 4.14(f4.13(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 of employment 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 Options) due any such employee, officer or other individual service provider by the Company or a Subsidiary of the Company Company. The consummation of the transactions contemplated hereby will not, either alone or (iii) in combination with another event, result in any “excess parachute payment” under Section 280G of the CodeCode 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.
(g) All Options have been granted in accordance with the terms of the Company Equity 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 Parent, accurate and complete copies of (i) the Company Equity Incentive Plan, (ii) the forms of standard award agreement under the Company Equity 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 Equity 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 subject to the Laws of any jurisdiction outside the United States which provides retirement benefits is a defined contribution plan.
Appears in 1 contract
Samples: Business Combination Agreement (Nebula Caravel Acquisition Corp.)
Company Benefit Plans. (a) Section 4.14(a4.13(a) of the Company Disclosure Letter sets forth a complete list list, as of the date hereof, of each 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”) and or any other plan, policy, program or agreement (including any employment, bonus, incentive or deferred compensation, employee loan, note or pledge agreement, equity or equity-based compensation, severance, retention, supplemental retirement, change in control or similar plan, policy, program or agreement, except for (i) offer letter agreements and employment agreements providing for employment terminable at will without advance notice, penalty, or severance obligation, (ii) independent contractor agreements and consulting agreements terminable on 30 days’ notice or less, and (iii) individual stock option agreements that do not contain vesting acceleration provisions, provided that in the case of clauses (i) and (ii) above, such agreements do not contain any retention bonus, change in control, or vesting acceleration provisions under which the Company has any outstanding compensatory obligations or liability (contingent or otherwise)) providing compensation or other benefits to any current or former director, officer, consultant individual consultant, worker or employee, which are maintained, sponsored or 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 liability, and in each case whether or not (whether written i) subject to the Laws of the United States, (ii) in writing or unwritten)(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 “Authority. With respect to each Company Benefit Plan”). The , the Company has delivered 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), including ) 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 three (3) 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.
, and (bF) Except as set forth on Section 4.14(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 have been made and all obligations in respect of each Company Benefit Plan have been accrued and reflected in the Company’s financial statements non-ordinary course communications received from or sent to the extent required by GAAP; and (iii) each Company IRS, the Pension Benefit Plan which is intended to be qualified within Guaranty Corporation, the meaning Department of Section 401(a) of the Code has received a favorable determination Labor or opinion letter from the IRS as to its qualification or may rely upon an opinion letter for a prototype plan and, any other applicable Governmental Authority relating 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.
(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, 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 to the knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company or any Subsidiary for periods extending beyond their retirement or other termination of service, other than (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).
(f) Except as set forth on Section 4.14(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 of employment 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 payable by the Company or any Subsidiary of the Company, except as expressly provided in this Agreement, (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation due any such employee, officer or other individual service provider by the Company or a Subsidiary of the Company or (iii) result in any “excess parachute payment” under Section 280G of the Code. 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.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Stratim Cloud Acquisition Corp.)
Company Benefit Plans. (a) Section 4.14(a4.13(a) of the Company Disclosure Letter sets forth a complete list list, as of the date hereof, of each material 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”) and or 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 control, welfare benefit, fringe benefit or similar plan, policy, program or agreement, except for (i) offer letter agreements and employment agreements providing for employment terminable at will without advance notice, penalty, or severance obligation, (ii) independent contractor agreements and consulting agreements terminable on 30 days’ notice or less, and (iii) individual stock option agreements that do not contain vesting acceleration provisions, provided that in the case of clauses (i) and (ii) above, such agreements do not contain any retention bonus, change in control, or vesting acceleration provisions under which the Company has any outstanding compensatory obligations or liability (contingent or otherwise)) providing compensation or other benefits to any current or former director, officer, consultant individual consultant, worker or employee, which are maintained, sponsored or 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 liability, and in each case whether or not (whether written i) subject to the Laws of the United States, (ii) in writing or unwritten)(iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law Law and maintained by any Governmental Authority (each, a “Authority. With respect to each material Company Benefit Plan”). The , the Company has delivered made available to Acquirorthe Purchasers, 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), including ) 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, 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 4.14(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 have been made and all obligations in respect of each Company Benefit Plan have been accrued and reflected in the Company’s financial statements to the extent required by GAAP; and (iiiF) 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 andany material, to the knowledge of the Company, no fact or event has occurred that would reasonably be expected to adversely affect the qualified status of non-routine correspondence with any such 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, 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 to the knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims.
(e) No Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company or any Subsidiary for periods extending beyond their retirement or other termination of service, other than (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).
(f) Except as set forth on Section 4.14(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 of employment 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 payable by the Company or any Subsidiary of the Company, except as expressly provided in this Agreement, (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation due any such employee, officer or other individual service provider by the Company or a Subsidiary of the Company or (iii) result in any “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan provides for a Tax gross-up, make whole or similar payment Governmental Authority with respect to the Taxes imposed under Sections 409A or 4999 of the CodeCompany Benefit Plans.
Appears in 1 contract
Samples: Convertible Promissory Note Purchase Agreement (Roth CH Acquisition IV Co.)
