Compliance; Liability. (i) With respect to each Plan (other than a Multiemployer Plan) that is subject to section 412 of the Code or section 302 or Title IV of ERISA, (A) no "accumulated funding deficiency" (within the meaning of Section 302 of ERISA and Section 412 of the Code) has been or could be expected to be incurred, whether or not waived, and no excise or other taxes have been or could be expected to be incurred or are due and owing with respect to the Plan because of any failure to comply with the minimum funding standards of ERISA and the Code, (B) no proceeding has been or is expected to be initiated to terminate such Plan, and (C) no security under Section 401(a)(29) of the Code has been or could be expected to be required. (ii) No liability has been or is expected to be incurred by Transferor, any Related Person or the Business (either directly or indirectly, including as a result of an indemnification obligation) under or pursuant to ERISA or otherwise or the penalty, excise tax or joint and several liability provisions of the Code relating to employee benefit plans that could, following the Closing, become or remain a liability of the Business or become a liability of the Company or of any employee benefit plan established or contributed to by the Company and, to the Knowledge of each of Transferor, no event, transaction or condition has occurred or exists that could result in any such liability to the Business or, following the Closing, the Company. (iii) Each of the Plans has been operated and administered in all respects in compliance with all Applicable Laws and the provisions of each Plan, except for any failure so to comply that, individually or together with all other such failures, has not and will not result in a material liability or obligation on the part of the Business, or, following the Closing, the Company, and has not had or resulted in, and will not have or result in, a Material Adverse Effect. There are no material pending or, to the Knowledge of Transferor, threatened claims, lawsuits, arbitrations or other action by or on behalf of any of the Plans, by any Employee or otherwise involving any such Plan or the assets of any Plan (other than routine claims for benefits). No Plan is or is expected to be under audit or investigation by the IRS, DOL, or any other Governmental Authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty. No "reportable event" within the meaning of Section 4043(b) of ERISA has occurred with respect to any Plan. Notwithstanding the foregoing, the representations set forth in this subsection (c) with respect to any Multiemployer Plan shall be made to Transferor's Knowledge. (iv) No Plan is a "multiple employer plan" within the meaning of section 4063 or 4064 of ERISA, and there has never been any "multiple employer plan" covering any Employees. With respect to each Plan which is a Multiemployer Plan: (a) with respect to events prior to the Closing, none of the Transferor, any Related Person, or their predecessors has incurred or has any reason to believe it has incurred or will incur any withdrawal liability; no event has occurred which with the giving of notice would result in any liability under Section 4201 of ERISA as a result of a complete withdrawal (within the meaning of Section 4203 of ERISA) or a partial withdrawal (within the meaning of Section 4205 of ERISA); none of the Transferor, any Related Person, or their predecessors has received any notice of any claim or demand for complete or partial withdrawal liability; (b) none of the Transferor, any Related Person, or their predecessors has received any notice or has any reason to believe that such Multiemployer Plan is in "reorganization" (within the meaning of Section 4241 of ERISA), that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, or that the Multiemployer Plan is or may become "insolvent" (within the meaning of Section 4241 of ERISA); (c) no Multiemployer Plan is a party to any pending merger or asset or liability transfer under Part 2 of Subtitle E of Title IV of ERISA; and (d) the PBGC has not instituted proceedings against the Multiemployer Plan. (v) All contributions required to have been made by Transferor and each Related Person to any Plan under the terms of any such Plan or pursuant to any applicable collective bargaining agreement or Applicable Law have been made within the time period prescribed by any such Plan, agreement or Applicable Law. (vi) No Employee is or may become entitled to post-employment benefits of any kind by reason of employment in the Business, including death or survivor benefits, medical or health benefits (whether or not insured), other than (a) coverage provided pursuant to the terms of any Plan specifically identified as providing such coverage in Schedule 3.1.21(c)(vi) or mandated by section 4980B of the Code, (b) retirement benefits payable under any Plan qualified under section 401(a) of the Code or (c) deferred compensation accrued as a liability on the Balance Sheet or incurred after December 31, 1997 in the ordinary course of business consistent with the prior practice of Transferor, pursuant to the terms of a Plan. The consummation of the transactions contemplated by this Agreement or the Collateral Agreements will not (either alone or upon the occurrence of any additional subsequent events) result in an increase in the amount of compensation or benefits (whether of severance pay or otherwise) or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any Employee. No amounts payable under any Plan will fail to be deductible for federal income tax purposes by virtue of Sections 280G or 162(m) of the Code. (vii) No Employee has accrued any additional benefits under the Floor Plan since July 1, 1995 (including earning any additional service towards a subsidized "early" retirement benefit). (viii) Transferor does not maintain any Plan that is funded by a trust described in Section 501(c)(9) of the Code or subject to the provisions of Section 505 of the Code. Transferor has complied with the requirements of Section 4980B of the Code regarding the continuation of health care coverage under any Plan and the provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). (ix) No event, condition, or circumstance exists that could result in a material increase of the benefits provided under any Plan or the expense of maintaining any Plan from the level of benefits or expense incurred for the most recent fiscal year ended before the Closing. Except as set forth on Schedule 3.1.21(c)(ix), no event, condition, or circumstance exists that would prevent the amendment or termination of any Plan.
Appears in 2 contracts
Samples: Capitalization Agreement (Genlyte Group Inc), Capitalization Agreement (Thomas Industries Inc)
Compliance; Liability. (i) With respect to each Plan (other than a Multiemployer Plan) that is subject to section 412 of the Code or section 302 or Title IV of ERISA, (A) no "accumulated funding deficiency" (within the meaning of Section 302 of ERISA and Section 412 of the Code) has been or could be expected to be incurred, whether or not waived, and no excise or other taxes have been or could be expected to be incurred or are due and owing with respect to the Plan because of any failure to comply with the minimum funding standards of ERISA and the Code, (B) no proceeding has been or is expected to be initiated to terminate such Plan, and (C) no security under Section 401(a)(29) of the Code has been or could be expected to be required.
(ii) No liability has been or is expected to be incurred by Transferor, any Related Person or the Business (either directly or indirectly, including as a result of an indemnification obligation) under or pursuant to ERISA or otherwise or the penalty, excise tax or joint and several liability provisions of the Code relating to employee benefit plans that could, following the Closing, become or remain a liability of the Business or become a liability of the Company or of any employee benefit plan established or contributed to by the Company and, to the Knowledge of each of Transferor, no event, transaction or condition has occurred or exists that could result in any such liability to the Business or, following the Closing, the Company.
(iii) Each of the Plans has been operated and administered in all respects in compliance with all Applicable Laws and the provisions of each Plan, except for any failure so to comply that, individually or together with all other such failures, has not and will not result in a material liability or obligation on the part of the Business, or, following the Closing, the Company, and has not had or resulted in, and will not have or result in, a Material Adverse Effect. There are no material pending or, to the Knowledge of Transferor, threatened claims, lawsuits, arbitrations or other action by or on behalf of any of the Plans, by any Employee or otherwise involving any such Plan or the assets of any Plan (other than routine claims for benefits). No Plan is or is expected to be under audit or investigation by the IRS, DOL, or any other Governmental Authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty. No "reportable event" within the meaning of Section 4043(b) of ERISA has occurred with respect to any Plan. Notwithstanding the foregoing, the representations set forth in this subsection (c) with respect to any Multiemployer Plan shall be made to Transferor's Knowledge.
(iv) No Plan is a "multiple employer plan" within the meaning of section 4063 or 4064 of ERISA, and there has never been any "multiple employer plan" covering any Employees. With respect to each Plan which is a Multiemployer Plan:
(a) with respect to events prior to the Closing, none of the Transferor, any Related Person, or their predecessors has incurred or has any reason to believe it has incurred or will incur any withdrawal liability; no event has occurred which with the giving of notice would result in any liability under Section 4201 of ERISA as a result of a complete withdrawal (within the meaning of Section 4203 of ERISA) or a partial withdrawal (within the meaning of Section 4205 of ERISA); none of the Transferor, any Related Person, or their predecessors has received any notice of any claim or demand for complete or partial withdrawal liability;
(b) none of the Transferor, any Related Person, or their predecessors has received any notice or has any reason to believe that such Multiemployer Plan is in "reorganization" (within the meaning of Section 4241 of ERISA), that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, or that the Multiemployer Plan is or may become "insolvent" (within the meaning of Section 4241 of ERISA);
(c) no Multiemployer Plan is a party to any pending merger or asset or liability transfer under Part 2 of Subtitle E of Title IV of ERISA; and
(d) the PBGC has not instituted proceedings against the Multiemployer Plan.
(v) All contributions required to have been made by Transferor and each Related Person to any Plan under the terms of any such Plan or pursuant to any applicable collective bargaining agreement or Applicable Law have been made within the time period prescribed by any such Plan, agreement or Applicable Law.
(vi) No Employee is or may become entitled to post-employment benefits of any kind by reason of employment in the Business, including death or survivor benefits, medical or health benefits (whether or not insured), other than (a) coverage provided pursuant to the terms of any Plan specifically identified as providing such coverage in Schedule 3.1.21(c)(vi) or mandated by section 4980B of the Code, (b) retirement benefits payable under any Plan qualified under section 401(a) of the Code or (c) deferred compensation accrued as a liability on the Audited Balance Sheet or incurred after December 31, 1997 in the ordinary course of business consistent with the prior practice of Transferor, pursuant to the terms of a Plan. The consummation of the transactions contemplated by this Agreement or the Collateral Agreements will not (either alone or upon the occurrence of any additional subsequent events) result in an increase in the amount of compensation or benefits (whether of severance pay or otherwise) or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any Employee. No amounts payable under any Plan will fail to be deductible for federal income tax purposes by virtue of Sections 280G or 162(m) of the Code.
(vii) No Employee has accrued any additional benefits under the Floor Plan since July 1, 1995 (including earning any additional service towards a subsidized "early" retirement benefit).
(viii) Transferor does not maintain any Plan that is funded by a trust described in Section 501(c)(9) of the Code or subject to the provisions of Section 505 of the Code. Transferor has complied with the requirements of Section 4980B of the Code regarding the continuation of health care coverage under any Plan and the provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
(ixviii) No event, condition, or circumstance exists that could result in a material increase of the benefits provided under any Plan or the expense of maintaining any Plan from the level of benefits or expense incurred for the most recent fiscal year ended before the Closing. Except as set forth on Schedule 3.1.21(c)(ix), no No event, condition, or circumstance exists that would prevent the amendment or termination of any Plan.
Appears in 2 contracts
Samples: Capitalization Agreement (Genlyte Group Inc), Capitalization Agreement (Thomas Industries Inc)
Compliance; Liability. (i) With respect to each Neither the Seller nor the Company, nor any Related Person, maintains or contributes to, and has never maintained or contributed to, a Plan (other than a Multiemployer Plan) that is subject to section 412 of the Code or section 302 or Title IV of ERISA, (A) no "accumulated funding deficiency" (within the meaning of Section 302 of ERISA and Section 412 of the Code) has been or could be expected to be incurred, whether or not waived, and no excise or other taxes have been or could be expected to be incurred or are due and owing with respect to the Plan because of any failure to comply with the minimum funding standards of ERISA and the Code, (B) no proceeding has been or is expected to be initiated to terminate such Plan, and (C) no security under Section 401(a)(29) of the Code has been or could be expected to be required.
(ii) No liability has been or is expected to be incurred by TransferorNeither Seller nor the Company, nor any Related Person or the Business Person, has incurred (either directly or indirectly, including as a result of an indemnification obligation) any material liability under or pursuant to Title I or IV of ERISA or otherwise or the penalty, excise tax Tax or joint and several liability provisions of the Code relating to employee benefit plans that could, following the Closing, become or remain a liability of the Business or become a liability of the Company or of any employee benefit plan established or contributed to by the Company and, to the Knowledge of each of Transferor, and no event, transaction or condition has occurred or exists that could would reasonably be expected to result in any such liability to Seller, the Business Company, or any such Related Person or, following the Closing, Buyer or any of its Affiliates. All contributions and premiums required to have been paid on or prior to the Closing Date by the Company, Seller or any Related Person to any employee benefit plan (within the meaning of Section 3(3) of ERISA) (including each Plan) under the terms of any such plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable Law or collective bargaining agreement (including ERISA and the Code) have been paid within the time prescribed by any such plan, agreement or applicable Law.
(iii) Each of the Plans has been operated and administered in all respects in compliance with its terms, all Applicable applicable Laws and the provisions of each Planall applicable collective bargaining agreements, except for any failure so to comply that, individually or together with all other such failuresand in the aggregate, has would not and will not reasonably be expected to result in a material liability or obligation on the part of the Business, or, following the Closing, the Company, and has not had Seller, or resulted inBuyer or any of its Affiliates, and will not or have or result in, in a Material Adverse Effect. There are no material pending or, to the Knowledge of TransferorSeller’s Knowledge, threatened claims, lawsuits, arbitrations or other action claims by or on behalf of any of the Plans, by any Employee or otherwise involving any such Plan or the assets of any Plan (other than routine claims for benefits, all of which have been fully reserved for on the regularly prepared balance sheets of the Company). No Plan is or is expected to be under audit or investigation by the IRS, DOL, or any other Governmental Authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty. No "reportable event" within the meaning of Section 4043(b) of ERISA has occurred with respect to any Plan. Notwithstanding the foregoing, the representations set forth in this subsection (c) with respect to any Multiemployer Plan shall be made to Transferor's Knowledge.
(iv) No Plan is a "multiple employer plan" within the meaning of section Section 4063 or 4064 of ERISA, and there has never been any "multiple employer plan" covering any Employees. With respect to each Plan which is a Multiemployer Plan:
(a) with respect to events prior to the Closing, none of the Transferor, any Related Person, or their predecessors has incurred or has any reason to believe it has incurred or will incur any withdrawal liability; no event has occurred which with the giving of notice would result in any liability under Section 4201 of ERISA as a result of a complete withdrawal (within the meaning of Section 4203 of ERISA) or a partial withdrawal (within the meaning of Section 4205 of ERISA); none of the Transferor, any Related Person, or their predecessors has received any notice of any claim or demand for complete or partial withdrawal liability;
(b) none of the Transferor, any Related Person, or their predecessors has received any notice or has any reason to believe that such Multiemployer Plan is in "reorganization" (within the meaning of Section 4241 of ERISA), that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, or that the Multiemployer Plan is or may become "insolvent" (within the meaning of Section 4241 of ERISA);
(c) no Multiemployer Plan is a party to any pending merger or asset or liability transfer under Part 2 of Subtitle E of Title IV of ERISA; and
(d) the PBGC has not instituted proceedings against the Multiemployer Plan.
(v) All contributions required Each Plan that is subject to have been made by Transferor the minimum funding standards of ERISA or the Code satisfies such standards under Sections 412 and each Related Person to any Plan under 302 of the terms of any Code and ERISA, respectively, and no such Plan or pursuant to any applicable collective bargaining agreement or Applicable Law have been made has incurred an “accumulated funding deficiency” within the time period prescribed by any meaning of such Plansections, agreement whether or Applicable Lawnot waived.
(vi) No Employee is or may will become entitled to post-employment benefits of any kind by reason of employment in by the BusinessCompany, including including, without limitation, death or survivor benefits, medical or health benefits (whether or not insured), other than (aA) coverage provided pursuant to the terms of any Plan specifically identified as providing such coverage in Schedule 3.1.21(c)(vi) or mandated by section Section 4980B of the Code, (bB) retirement benefits payable under any Plan qualified under section Section 401(a) of the Code or (cC) deferred compensation accrued as a liability on the Closing Date Balance Sheet or incurred after December 31, 1997 in the ordinary course of business consistent with the prior practice of Transferor, pursuant to the terms of a PlanSheet. The consummation of the transactions contemplated by this Agreement or the Collateral Agreements Contemplated Transactions will not (either alone or upon the occurrence of any additional subsequent eventsX) result in an increase in the amount of compensation or benefits (whether of severance pay or otherwise) or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any Employee. No amounts payable under ; (Y) result in or satisfy a condition to the payment of compensation that would, in combination with any Plan will fail to be deductible for federal income tax purposes by virtue other payment, result in an “excess parachute payment” within the meaning of Sections 280G or 162(mSection 280G(b) of the Code; or (Z) constitute or involve a prohibited transaction as defined under ERISA or the Code, or a breach of fiduciary duty under Title I of ERISA.
(vii) No Employee The Company (including any Affiliate thereof) has accrued any additional at all times (A) properly classified its workers as employees and independent contractors under IRS regulations; (B) properly withheld and paid over to the IRS all applicable employment taxes and other required payments; and (C) provided benefits under each Plan to all eligible persons in accordance with the Floor Plan since July 1, 1995 (including earning any additional service towards a subsidized "early" retirement benefit)provisions of the applicable Plan.
(viii) Transferor does not maintain any Plan that is funded by a trust described in Section 501(c)(9) of No prohibited transaction as defined under ERISA or the Code or subject breach of fiduciary duty under Title I of ERISA has occurred with respect to any Plan or with respect to the provisions of Section 505 of the Code. Transferor has complied with the requirements of Section 4980B of the Code regarding the continuation of health care coverage under Company, Seller or any Plan and the provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA")Related Person.
(ix) No event, condition, or circumstance exists that could result in a material increase partial termination (as defined under Section 411(d)(3) of the benefits provided under Code) of any Plan has occurred or the expense of maintaining any Plan from the level of benefits or expense incurred for the most recent fiscal year ended before the Closing. Except as set forth on Schedule 3.1.21(c)(ix), no event, condition, or circumstance exists that would prevent the amendment or termination of any Planis reasonably likely to occur.
Appears in 1 contract
Compliance; Liability. (i) With respect to each No Plan (other than a Multiemployer Plan) that is subject to section 412 of the Code or section 302 or Title IV of ERISA, (A) no "accumulated funding deficiency" (within the meaning of Section 302 of ERISA and Section 412 of the Code) has been or could be expected to be incurred, whether or not waived, and no excise or other taxes have been or could be expected to be incurred or are due and owing with respect to the Plan because of any failure to comply with the minimum funding standards of ERISA and the Code, (B) no proceeding has been or is expected to be initiated to terminate such Plan, and (C) no security under Section 401(a)(29) of the Code has been or could be expected to be required.
(ii) No liability has been or is expected to be incurred by TransferorSeller, any Related Person of its Affiliates or the Business (either directly or indirectly, including as a result of an indemnification obligation) under or pursuant to Title I or IV of ERISA or otherwise or the penalty, excise tax or joint and several liability provisions of the Code relating to employee benefit plans that could, following the Closing, become or remain a liability of the Business or become a liability of the Company Buyer or of any employee benefit plan established or contributed to by the Company Buyer and, to the Knowledge best knowledge of each of TransferorSeller and its Affiliates after due inquiry, no event, transaction or condition has occurred or exists that could result in any such liability to the Business or, following the Closing, the CompanyBuyer.
(iii) Each of the Plans has been operated and administered in all respects in compliance with all Applicable Laws and the provisions of each Planapplicable laws, except for any failure so to comply that, individually or together with all other such failures, has not and will not result in a material liability or obligation on the part of the Business, or, following the Closing, the CompanyBuyer, and has not had or resulted in, and will not have or result in, a Material Adverse Effect. There are no material pending or, to the Knowledge best knowledge of TransferorSeller after due inquiry, threatened claims, lawsuits, arbitrations or other action claims by or on behalf of any of the Plans, by any Employee or otherwise involving any such Plan or the assets of any Plan (other than routine claims for benefits). No Plan is or is expected to be under audit or investigation by the IRS, DOL, or any other Governmental Authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty. No "reportable event" within the meaning of Section 4043(b) of ERISA has occurred with respect to any Plan. Notwithstanding the foregoing, the representations set forth in this subsection (c) with respect to any Multiemployer Plan shall be made to Transferor's Knowledge.
(iv) No Plan is a "multiemployer plan" as defined in Section 414(f) of the Code or Sections 3(37) or 4001(a)(3) of ERISA or is a "multiple employer plan" within the meaning of section 4063 Section 413(c) of the Code or Sections 4063, 4064 or 4066 of ERISA, and there has never been any "multiple employer plan" covering any Employees. With respect to each Plan which is a Multiemployer Plan:
(a) with respect to events prior to the Closing, none of the Transferor, any Related Person, or their predecessors has incurred or has any reason to believe it has incurred or will incur any withdrawal liability; no event has occurred which with the giving of notice would result in any liability under Section 4201 of ERISA as a result of a complete withdrawal (within the meaning of Section 4203 of ERISA) or a partial withdrawal (within the meaning of Section 4205 of ERISA); none of the Transferor, any Related Person, or their predecessors has received any notice of any claim or demand for complete or partial withdrawal liability;
(b) none of the Transferor, any Related Person, or their predecessors has received any notice or has any reason to believe that such Multiemployer Plan is in "reorganization" (within the meaning of Section 4241 of ERISA), that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, or that the Multiemployer Plan is or may become "insolvent" (within the meaning of Section 4241 of ERISA);
(c) no Multiemployer Plan is a party to any pending merger or asset or liability transfer under Part 2 of Subtitle E of Title IV of ERISA; and
(d) the PBGC has not instituted proceedings against the Multiemployer Plan.
(v) All contributions required to have been made by Transferor Seller and each Related Person to any Plan under the terms of any such Plan or pursuant to any applicable collective bargaining agreement or Applicable Law applicable law have been made within the earliest time period prescribed by any such Plan, agreement or Applicable Lawapplicable law.
(vi) No Employee is or may become entitled to post-employment benefits of any kind by reason of employment in the Business, including including, without limitation, death or survivor benefits, medical or health benefits (whether or not insured), other than (a) coverage provided pursuant to the terms of any Plan specifically identified as providing such coverage in Schedule 3.1.21(c)(vi) 3.1.16 or mandated by section 4980B of the Code, Code (b) retirement benefits payable under any Plan qualified under section 401(a) of the Code or (c) deferred compensation accrued as a liability on the Audited Balance Sheet or incurred after December 31, 1997 the Audited Balance Sheet Date in the ordinary course of business consistent with the prior practice of TransferorSeller, pursuant to the terms of a Plan. The consummation of the transactions contemplated by this Agreement or the Collateral Agreements Agreement, will not (either alone or upon the occurrence of any additional subsequent events) result in an increase in the amount of compensation or benefits (whether of severance pay or otherwise) or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any Employee. No amounts payable under any Plan will fail to be deductible for federal income tax purposes by virtue of Sections 280G or 162(m) of the Code.
(vii) No Employee has accrued any additional benefits under the Floor Plan since July 1, 1995 (including earning any additional service towards a subsidized "early" retirement benefit).
(viii) Transferor does not maintain any Plan that is funded by a trust described in Section 501(c)(9) of the Code or subject to the provisions of Section 505 of the Code. Transferor has complied with the requirements of Section 4980B of the Code regarding the continuation of health care coverage under any Plan and the provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
(ix) No event, condition, or circumstance exists that could result in a material increase of the benefits provided under any Plan or the expense of maintaining any Plan from the level of benefits or expense incurred for the most recent fiscal year ended before the Closing. Except as set forth on Schedule 3.1.21(c)(ix), no event, condition, or circumstance exists that would prevent the amendment or termination of any Plan.
Appears in 1 contract
Samples: Agreement (Paramark Enterprises Inc)
Compliance; Liability. (i) With respect Neither the Company nor any of its Subsidiaries has been involved in any transaction that could cause the Company or any of its Subsidiaries or, following the Closing, Purchaser, to each Plan (other than a Multiemployer Plan) that is be subject to section 412 of the Code material liability under Section 4069 or section 302 or Title IV 4212 of ERISA, (A) no "accumulated funding deficiency" (within . Neither the meaning Company nor any of Section 302 of ERISA and Section 412 of the Code) its Subsidiaries has been or could be expected to be incurred, whether or not waived, and no excise or other taxes have been or could be expected to be incurred or are due and owing with respect to the Plan because of any failure to comply with the minimum funding standards of ERISA and the Code, (B) no proceeding has been or is expected to be initiated to terminate such Plan, and (C) no security under Section 401(a)(29) of the Code has been or could be expected to be required.
(ii) No liability has been or is expected to be incurred by Transferor, any Related Person or the Business (either directly or indirectly, including as a result of an indemnification obligation) any material liability under or pursuant to Title I or IV of ERISA or otherwise or the penalty, excise tax Tax or joint and several liability provisions of the Code relating to employee benefit plans that could, following the Closing, become or remain a liability of the Business or become a liability of the Company or of any employee benefit plan established or contributed to by the Company and, to the Knowledge of each of Transferor, and no event, transaction or condition has occurred or exists that could result in any such material liability to the Business Company or any of its Subsidiaries or, following the Closing, Purchaser or any of its Affiliates. All contributions and premiums required to have been paid by the CompanyCompany or its Subsidiaries to any employee benefit plan (within the meaning of Section 3(3) of ERISA) under the terms of any such plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable Law (including ERISA and the Code) or collective bargaining agreement have been paid within the time prescribed by any such plan, arrangement, applicable Law, or agreement.
(iiiii) Each Except as set forth on Schedule 2.18(c)(ii) of the Company Disclosure Letter, each of the Plans has been operated and administered in all material respects in compliance with its terms, all Applicable applicable Laws and the provisions of each Plan, except for any failure so to comply that, individually or together with all other such failures, has not and will not result in a material liability or obligation on the part of the Business, or, following the Closing, the Company, and has not had or resulted in, and will not have or result in, a Material Adverse Effectapplicable collective bargaining agreements. There are no material pending or, to the Knowledge knowledge of Transferorthe Company, material threatened claims, lawsuits, arbitrations or other action claims by or on behalf of any of the Plans, by any Employee or otherwise involving any such Plan or the assets of any Plan (other than routine claims for benefits, all of which have been fully reserved for on the regularly prepared balance sheets of the Company or its Subsidiaries). .
(iii) No Plan is or is expected to be under audit or investigation by the IRS, DOL, or any other Governmental Authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty. No a "reportable eventmultiemployer plan" within the meaning of Section 4043(b4001(a)(3) of ERISA has occurred with respect to any Plan. Notwithstanding the foregoing, the representations set forth in this subsection (c) with respect to any Multiemployer Plan shall be made to Transferor's Knowledge.
(iv) No Plan is or a "multiple employer plan" within the meaning of section Section 4063 or 4064 of ERISA, and there has never been any "multiple employer plan" covering any Employees. With respect to each Plan which is a Multiemployer Plan:.
(aiv) with respect No Plan is subject to events prior to the Closing, none Section 412 of the Transferor, any Related Person, Code or their predecessors has incurred Section 302 or has any reason to believe it has incurred or will incur any withdrawal liability; no event has occurred which with the giving of notice would result in any liability under Section 4201 of ERISA as a result of a complete withdrawal (within the meaning of Section 4203 of ERISA) or a partial withdrawal (within the meaning of Section 4205 of ERISA); none of the Transferor, any Related Person, or their predecessors has received any notice of any claim or demand for complete or partial withdrawal liability;
(b) none of the Transferor, any Related Person, or their predecessors has received any notice or has any reason to believe that such Multiemployer Plan is in "reorganization" (within the meaning of Section 4241 of ERISA), that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, or that the Multiemployer Plan is or may become "insolvent" (within the meaning of Section 4241 of ERISA);
(c) no Multiemployer Plan is a party to any pending merger or asset or liability transfer under Part 2 of Subtitle E of Title IV of ERISA; and
(d) the PBGC has not instituted proceedings against the Multiemployer Plan.
(v) All contributions required to have been made by Transferor and each Related Person to any Plan under the terms of any such Plan or pursuant to any applicable collective bargaining agreement or Applicable Law have been made within the time period prescribed by any such Plan, agreement or Applicable Law.
(vi) No Employee is or may will become entitled to post-employment benefits of any kind by reason of employment in with the BusinessCompany or its Subsidiaries, including including, without limitation, death or survivor benefits, medical or health benefits (whether or not insured), other than (ax) coverage provided pursuant to the terms of any Plan specifically identified as providing such coverage in Schedule 3.1.21(c)(vi) or mandated by section Section 4980B of the Code, or (by) retirement benefits payable under any Plan qualified under section Section 401(a) of the Code or (cCode. Except as set forth on Schedule 2.18(c) deferred compensation accrued as a liability on of the Balance Sheet or incurred after December 31Company Disclosure Letter, 1997 in the ordinary course of business consistent with the prior practice of Transferor, pursuant to the terms of a Plan. The consummation of the transactions contemplated by this Agreement or and the Collateral Ancillary Agreements will not (either alone or upon the occurrence of any additional subsequent events) result in an increase in the amount of compensation or benefits (whether of severance pay or otherwise) or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any Employee. No amounts payable under any Plan will fail to be deductible for federal income tax purposes by virtue of Sections 280G or 162(m) of the Code.
(vii) No Employee has accrued any additional benefits under the Floor Plan since July 1, 1995 (including earning any additional service towards a subsidized "early" retirement benefit).
(viii) Transferor does not maintain any Plan that is funded by a trust described in Section 501(c)(9) of the Code or subject to the provisions of Section 505 of the Code. Transferor has complied with the requirements of Section 4980B of the Code regarding the continuation of health care coverage under any Plan and the provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
(ix) No event, condition, or circumstance exists that could result in a material increase of the benefits provided under any Plan or the expense of maintaining any Plan from the level of benefits or expense incurred for the most recent fiscal year ended before the Closing. Except as set forth on Schedule 3.1.21(c)(ix), no event, condition, or circumstance exists that would prevent the amendment or termination of any Plan.
Appears in 1 contract
Samples: Stock Purchase Agreement and Agreement and Plan of Merger (NCP SBG Lp)
Compliance; Liability. (i) With respect to each No Plan (other than a Multiemployer Plan) that is subject to section 412 of the Code or section 302 or Title IV of ERISA, (A) no "accumulated funding deficiency" (within the meaning of Section 302 of ERISA and Section 412 of the Code) has been or could be expected to be incurred, whether or not waived, and no excise or other taxes have been or could be expected to be incurred or are due and owing with respect to the Plan because of any failure to comply with the minimum funding standards of ERISA and the Code, (B) no proceeding has been or is expected to be initiated to terminate such Plan, and (C) no security under Section 401(a)(29) of the Code has been or could be expected to be required.
(ii) . No liability has been or is expected to be incurred by TransferorBilling, any Related Person or the Business (either directly or indirectly, including as a result of an indemnification obligation) under or pursuant to Title I or IV of ERISA or otherwise or the penalty, excise tax or joint and several liability provisions of the Code relating to employee benefit plans that couldplans, following the Closing, become or remain a liability of the Business or become a liability of the Company or of any employee benefit plan established or contributed to by the Company and, to the Knowledge knowledge of each of Transferorthe Selling Partners, no event, transaction or condition has occurred or exists that could result in any such liability to the Business or, following the Closing, the Company.
(iii) business of Billing. Each of the Plans has been operated and administered in all respects in compliance with all Applicable Laws and the provisions of each PlanLaws, except for any failure so to comply that, individually or together with all other such failures, has not and will not result in a material liability or obligation on the part of the Business, or, following the Closing, the Companybusiness of Billing, and has not had or resulted in, and will not have or result in, a Material Adverse Effect. There are no material pending or, to the Knowledge best knowledge of TransferorBilling and the Selling Partners, threatened claims, lawsuits, arbitrations or other action claims by or on behalf of any of the Plans, by any Employee or otherwise otherwise, involving any such Plan or the assets of any Plan (other than routine claims for benefits). No Plan is or is expected to be under audit or investigation by the IRS, DOL, or any other Governmental Authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty. No a "reportable eventmultiemployer plan" within the meaning of Section 4043(b4001(a)(3) ------------------- of ERISA has occurred with respect to any Plan. Notwithstanding the foregoing, the representations set forth in this subsection (c) with respect to any Multiemployer Plan shall be made to Transferor's Knowledge.
(iv) No Plan or is a "multiple employer plan" within the meaning ------------------------ of section 4063 or 4064 of ERISA, and there has never been any "multiple employer plan" covering any Employees. With respect to each Plan which is a Multiemployer Plan:
(a) with respect to events prior to the Closing, none of the Transferor, any Related Person, or their predecessors has incurred or has any reason to believe it has incurred or will incur any withdrawal liability; no event has occurred which with the giving of notice would result in any liability under Section 4201 of ERISA as a result of a complete withdrawal (within the meaning of Section 4203 of ERISA) or a partial withdrawal (within the meaning of Section 4205 of ERISA); none of the Transferor, any Related Person, or their predecessors has received any notice of any claim or demand for complete or partial withdrawal liability;
(b) none of the Transferor, any Related Person, or their predecessors has received any notice or has any reason to believe that such Multiemployer Plan is in "reorganization" (within the meaning of Section 4241 of ERISA), that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, or that the Multiemployer Plan is or may become "insolvent" (within the meaning of Section 4241 of ERISA);
(c) no Multiemployer Plan is a party to any pending merger or asset or liability transfer under Part 2 of Subtitle E of Title IV of ERISA; and
(d) the PBGC has not instituted proceedings against the Multiemployer Plan.
(v) All contributions required to have been made by Transferor Billing and each Related Person to any Plan under the terms of any such Plan or pursuant to any applicable collective bargaining agreement or Applicable Law have been made within the earliest time period prescribed by any such Plan, agreement or Applicable Law.
(vi) No Employee is or may become entitled to post-employment benefits of any kind by reason of employment in the Business, including death or survivor benefits, medical or health benefits (whether or not insured), other than (a) coverage provided pursuant to the terms of any Plan specifically identified as providing such coverage in Schedule 3.1.21(c)(vi) or mandated by section 4980B of the Code, (b) retirement benefits payable under any Plan qualified under section 401(a) of the Code or (c) deferred compensation accrued as a liability on the Balance Sheet or incurred after December 31, 1997 in the ordinary course of business consistent with the prior practice of Transferor, pursuant to the terms of a Plan. The consummation of the transactions contemplated by this Agreement or the Collateral Agreements will not (either alone or upon the occurrence of any additional subsequent events) result in an increase in the amount of compensation or benefits (whether of severance pay or otherwise) or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any Employee. No amounts payable under any Plan will fail to be deductible for federal income tax purposes by virtue of Sections 280G or 162(m) of the Code.
(vii) No Employee has accrued any additional benefits under the Floor Plan since July 1, 1995 (including earning any additional service towards a subsidized "early" retirement benefit).
(viii) Transferor does not maintain any Plan that is funded by a trust described in Section 501(c)(9) of the Code or subject to the provisions of Section 505 of the Code. Transferor has complied with the requirements of Section 4980B of the Code regarding the continuation of health care coverage under any Plan and the provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
(ix) No event, condition, or circumstance exists that could result in a material increase of the benefits provided under any Plan or the expense of maintaining any Plan from the level of benefits or expense incurred for the most recent fiscal year ended before the Closing. Except as set forth on Schedule 3.1.21(c)(ix), no event, condition, or circumstance exists that would prevent the amendment or termination of any Plan.or
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Avery Communications Inc)
Compliance; Liability. (i) With respect to each No Plan covered by Title IV of the Employee Retirement Income Security Act of 1974, as amended (other than a Multiemployer Plan"ERISA") that is subject to section or Section 412 of the Code is now, or section 302 or Title IV of ERISAever was, (A) no "accumulated funding deficiency" (within the meaning of Section 302 of ERISA and Section 412 of the Code) has been or could be expected to be incurred, whether or not waived, and no excise or other taxes have been or could be expected to be incurred or are due and owing with respect to the knowledge of Utility or any Shareholder, maintained by Utility, J&B or any predecessor of either of them. Neither any Plan because of nor Utility nor J&B has incurred any failure to comply with the minimum funding standards of ERISA and the Code, (B) no proceeding has been liability or is expected to be initiated to terminate such Plan, and (C) no security penalty under Section 401(a)(29) 4975 of the Code has been or could be expected to be requiredSections 409, 502(i) or 502(l) of ERISA.
(ii) No liability has been or is expected to be incurred by Transferor, any Related Person or the Business (either directly or indirectly, including as a result of an indemnification obligation) under or pursuant to ERISA or otherwise or the penalty, excise tax or joint and several liability provisions of the Code relating to employee benefit plans that could, following the Closing, become or remain a liability of the Business or become a liability of the Company or of any employee benefit plan established or contributed to by the Company and, to the Knowledge of each of Transferor, no event, transaction or condition has occurred or exists that could result in any such liability to the Business or, following the Closing, the Company.
(iii) Each of the Plans has been operated and administered in all respects in substantial compliance with all Applicable Laws applicable Laws, including without limitation all applicable provisions of ERISA and the provisions of each Plan, except for any failure so to comply that, individually or together with all other such failures, has not and will not result in a material liability or obligation on the part of the Business, or, following the Closing, the Company, and has not had or resulted in, and will not have or result in, a Material Adverse EffectCode. There are no material pending or, to the Knowledge knowledge of TransferorUtility or any Shareholder, threatened claims, lawsuits, arbitrations or other action by anticipated claims against or on behalf of involving any of the PlansPlans and no suit, by any Employee action or otherwise involving other litigation (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought against or with respect to any such Plan or the assets of any Plan Plan.
(other than routine claims for benefits). No Plan is or is expected iii) All contributions required to be made as of the date of this Agreement to the Plans have been made or provided for. Neither Utility, J&B nor any entity under audit "common control" with Utility or investigation by the IRS, DOL, or any other Governmental Authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty. No "reportable event" J&B within the meaning of Section 4043(b) 4001 of ERISA has occurred with respect contributed to, or been required to contribute to, any Plan. Notwithstanding the foregoing, the representations set forth "multi-employer plan" (as defined in this subsection (cSections 3(37) with respect to any Multiemployer Plan shall be made to Transferor's Knowledgeand 4001(a)(3) of ERISA).
(iv) No Plan is a "multiple employer plan" within the meaning of section 4063 or 4064 of ERISA, and there has never been any "multiple employer plan" covering any Employees. With respect to each Plan which is a Multiemployer Plan:
(a) with respect to events prior to the Closing, none of the Transferor, any Related Person, or their predecessors has incurred or has any reason to believe it has incurred or will incur any withdrawal liability; no event has occurred which with the giving of notice would result in any liability under Section 4201 of ERISA as a result of a complete withdrawal (within the meaning of Section 4203 of ERISA) or a partial withdrawal (within the meaning of Section 4205 of ERISA); none of the Transferor, any Related Person, or their predecessors has received any notice of any claim or demand for complete or partial withdrawal liability;
(b) none of the Transferor, any Related Person, or their predecessors has received any notice or has any reason to believe that such Multiemployer Plan is in "reorganization" (within the meaning of Section 4241 of ERISA), that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, or that the Multiemployer Plan is or may become "insolvent" (within the meaning of Section 4241 of ERISA);
(c) no Multiemployer Plan is a party to any pending merger or asset or liability transfer under Part 2 of Subtitle E of Title IV of ERISA; and
(d) the PBGC has not instituted proceedings against the Multiemployer Plan.
(v) All contributions required to have been made by Transferor and each Related Person to any Plan under the terms of any such Plan or pursuant to any applicable collective bargaining agreement or Applicable Law have been made within the time period prescribed by any such Plan, agreement or Applicable Law.
(vi) No Employee is or may become entitled to post-employment benefits of any kind by reason of employment in the Businessby Utility or J&B, including including, without limitation, death or survivor benefits, medical or health benefits (whether or not nor insured), other than (a) coverage provided pursuant to the terms of any Plan specifically identified as providing such coverage in Schedule 3.1.21(c)(vi4.1.21(a) or mandated by section Section 4980B of the Code, (b) retirement benefits payable under any Plan qualified under section Section 401(a) of the Code or (c) deferred compensation fully and adequately accrued as a liability on the Latest Balance Sheet or incurred with respect to services rendered after December 31, 1997 the Balance Sheet Date in the ordinary course of business consistent with the prior practice of Transferorpractice, pursuant to the terms of a Plan. The consummation of the transactions contemplated by this Agreement or the Collateral Agreements will not (either alone or upon the occurrence of any additional subsequent events) result in an increase in the amount of compensation or benefits (whether of severance pay or otherwise) or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any Employee. No amounts payable under any Plan will fail to be deductible for federal income tax purposes by virtue of Sections 280G or 162(m) of the Code.
(vii) No Employee has accrued any additional benefits under the Floor Plan since July 1, 1995 (including earning any additional service towards a subsidized "early" retirement benefit).
(viii) Transferor does not maintain any Plan that is funded by a trust described in Section 501(c)(9) of the Code or subject to the provisions of Section 505 of the Code. Transferor has complied with the requirements of Section 4980B of the Code regarding the continuation of health care coverage under any Plan and the provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
(ix) No event, condition, or circumstance exists that could result in a material increase of the benefits provided under any Plan or the expense of maintaining any Plan from the level of benefits or expense incurred for the most recent fiscal year ended before the Closing. Except as set forth on Schedule 3.1.21(c)(ix), no event, condition, or circumstance exists that would prevent the amendment or termination of any Plan.
Appears in 1 contract
Compliance; Liability. (i) With respect to each Except as set forth in Section 3.15(c)(i) of the Parent Disclosure Letter, no Plan (other than a Multiemployer Plan) that is subject to section 412 of the Code or section 302 or 302 or Title IV of ERISA, (A) no "accumulated funding deficiency" (within the meaning of Section 302 of ERISA and Section 412 of the Code) has been or could be expected to be incurred, whether or not waived, and no excise or other taxes have been or could be expected to be incurred or are due and owing with respect to the Plan because of any failure to comply with the minimum funding standards of ERISA and the Code, (B) no proceeding has been or is expected to be initiated to terminate such Plan, and (C) no security under Section 401(a)(29) of the Code has been or could be expected to be required.
(ii) No Except as set forth in Section 3.15(c)(ii) of the Parent Disclosure Letter, no material liability has been or is expected to be incurred by Transferor, Parent or any Related Person Affiliate of Parent or the Carve Out Business (either directly or indirectly, including as a result of an indemnification obligation) under or pursuant to Title I or IV of ERISA or otherwise or the penalty, excise tax or joint and several liability provisions of the Code relating to employee benefit plans that could, following the Closing, become or remain a liability of the Carve Out Business or become a liability of the Company Purchaser or any of its Affiliates or of any employee benefit plan established or contributed to by the Company Purchaser and, to the Knowledge of each of TransferorParent, no event, transaction or condition has occurred or exists that could result in any such liability to the Carve Out Business or, following the Closing, the CompanyPurchaser.
(iii) Each Except as set forth in Section 3.15(c)(iii) of the Parent Disclosure Letter, each of the Plans has been operated and administered in all material respects in compliance with all Applicable Laws and the provisions of each PlanLaws, except for any failure so to comply that, individually or together with all other such failures, (A) has not and - will not result in a material liability or - obligation on the part of the Carve Out Business, or, following the Closing, the CompanyPurchaser or any of its Affiliates, and (B) has not had or - resulted in, and will - not have or result in, a Material Adverse Effect. There Except as set forth in Section 3.15(c)(iii) of the Parent Disclosure Letter, there are no material pending or, to the Knowledge of TransferorParent, threatened claims, lawsuits, arbitrations or other action claims by or on behalf of any of the Plans, by any Employee or otherwise involving any such Plan or the assets of any Plan (other than routine claims for benefits). No Plan is or is expected to be under audit or investigation by .
(iv) Except as set forth in Section 3.15(c)(iv) of the IRSParent disclosure Letter, DOL, or any other Governmental Authority no condition exists and no such completed audit, if any, has resulted in the imposition of any tax or penalty. No "reportable event" within the meaning of Section 4043(b) of ERISA event has occurred with respect to any Plan. Notwithstanding the foregoing, the representations set forth in this subsection (c) with respect to any Multiemployer Plan shall be made to Transferor's Knowledge.
(iv) No Plan that is a "multiple employer multiemployer plan" within the meaning of section 4063 or 4064 4001(a)(3) of ERISA, and there has never been any ERISA (a "multiple employer plan" covering any Employees. With respect to each Plan which is a Multiemployer Plan:
(a") with respect to events prior to the Closing, none of the Transferor, any Related Person, or their predecessors has incurred or has any reason to believe it has incurred or will incur any withdrawal liability; no event has occurred which with the giving of notice would result in any liability under Section 4201 of ERISA as that presents a result ------------------ material risk of a complete withdrawal (within the meaning of Section 4203 of ERISA) or a partial withdrawal (within the meaning of Section 4205 of ERISA); none of the Transferor, any Related Person, or their predecessors has received any notice of any claim or demand for complete or partial withdrawal liability;
(b) none under subtitle E of Title IV of ERISA. To the TransferorKnowledge of Parent, any Related Person, or their predecessors has received any notice or has any reason to believe that such no Multiemployer Plan is in "reorganization" (within the meaning of Section 4241 of ERISA), that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, or that the Multiemployer Plan is or may become "insolvent" (within the meaning of Section 4241 of ERISA);
(c) no Multiemployer Plan is a party to any pending merger or asset or liability transfer under Part 2 of Subtitle E of Title IV of ERISA; and
(d) the PBGC has not instituted proceedings against the Multiemployer Plan."
(v) All contributions required to have been made by Transferor and each Related Person Parent or any Affiliate of Parent to any Plan under the terms of any such Plan or pursuant to any applicable collective bargaining agreement or Applicable Law applicable law have been made within the time period prescribed by any such Plan, agreement or Applicable Law.
(vi) No Employee is or may become entitled to post-employment benefits of any kind by reason of employment in the Carve Out Business, including including, without limitation, death or survivor benefits, medical or health benefits (whether or not insured), other than (aA) coverage provided pursuant to the terms of any - Plan specifically identified as providing such coverage in Schedule 3.1.21(c)(viSection 3.15(c)(vi) of the Parent Disclosure Letter or mandated by section 4980B of the Code, or (bB) retirement benefits payable under any Plan qualified under - section 401(a) of the Code or Code.
(cvii) deferred compensation accrued Except as a liability on the Balance Sheet or incurred after December 31, 1997 otherwise expressly set forth in the ordinary course of business consistent with Human Resources Agreement, the prior practice of Transferor, pursuant to the terms of a Plan. The consummation of the transactions contemplated by this Agreement or the Collateral Agreements Ancillary Documents will not (either alone or upon the occurrence of any additional subsequent events) result in an increase in the amount of compensation or benefits (whether of severance pay or otherwise) or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any Employee. No amounts payable under any Plan will fail to be deductible for federal income tax purposes by virtue of Sections 280G or 162(m) of the Code.
(vii) No Employee has accrued any additional benefits under the Floor Plan since July 1, 1995 (including earning any additional service towards a subsidized "early" retirement benefit).
(viii) Transferor does not maintain any Plan that is funded by a trust described in Section 501(c)(9) of the Code or subject to the provisions of Section 505 of the Code. Transferor has complied with the requirements of Section 4980B of the Code regarding the continuation of health care coverage under any Plan and the provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
(ix) No event, condition, or circumstance exists that could result in a material increase of the benefits provided under any Plan or the expense of maintaining any Plan from the level of benefits or expense incurred for the most recent fiscal year ended before the Closing. Except as set forth on Schedule 3.1.21(c)(ix), no event, condition, or circumstance exists that would prevent the amendment or termination of any Plan.
Appears in 1 contract
Compliance; Liability. (i) With respect Neither the Parent nor any member of the Parent Group would be liable for any material amount pursuant to each section 4062, 4063 or 4064 of ERISA if any Plan (other than a Multiemployer Plan) that is subject to section 412 of the Code or section 302 or Title IV of ERISA, ERISA (Aa “Title IV Plan”) no "accumulated funding deficiency" (within the meaning of Section 302 of ERISA and Section 412 were to terminate as of the Codedate hereof.
(ii) has been or could Except as would not reasonably be expected to be incurredhave a Material Adverse Effect, whether or not waived, and no excise or other taxes have been or could be expected each Plan that is subject to be incurred or are due and owing with respect to the Plan because of any failure to comply with the minimum funding standards of ERISA or the Code satisfies such standards under sections 412 and the Code, (B) no proceeding has been or is expected to be initiated to terminate such Plan, and (C) no security under Section 401(a)(29) 302 of the Code and ERISA, respectively, and no such Plan has been incurred and “accumulated funding deficiency” within the meaning of such sections, whether or could be expected to be required.
(ii) No liability has been or is expected to be incurred by Transferor, any Related Person or the Business (either directly or indirectly, including as a result of an indemnification obligation) under or pursuant to ERISA or otherwise or the penalty, excise tax or joint and several liability provisions of the Code relating to employee benefit plans that could, following the Closing, become or remain a liability of the Business or become a liability of the Company or of any employee benefit plan established or contributed to by the Company and, to the Knowledge of each of Transferor, no event, transaction or condition has occurred or exists that could result in any such liability to the Business or, following the Closing, the Companynot waived.
(iii) Each of the Plans has been operated and administered in all respects in compliance with its terms, all Applicable Laws and the provisions of each Planall applicable collective bargaining agreements, except for any failure failures so to comply that, individually or together with all other such failures, has not and will not result in a material liability or obligation on the part of the Business, or, following the Closing, the Company, and has not had or resulted in, and will not that would reasonably be expected to have or result in, a Material Adverse Effect. There are no material pending or, or to the Knowledge of Transferorthe Parent, threatened claims, lawsuits, arbitrations or other action claims by or on behalf of any of the Plans, by any Employee or otherwise involving any such Plan or the assets of any Plan (other than routine claims for benefits, all of which have been fully reserved of on the regularly prepared consolidated balance sheets of the Parent). No Plan is or is expected to be under audit or investigation by the IRS, DOL, or any other Governmental Authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty. No "reportable event" within the meaning of Section 4043(b) of ERISA has occurred with respect to any Plan. Notwithstanding the foregoing, the representations set forth in this subsection (c) with respect to any Multiemployer Plan shall be made to Transferor's Knowledge.
(iv) No Plan is a "multiple employer “multiemployer plan" ” within the meaning of section 4063 or 4064 4001(a)(3) of ERISA, and there has never been any "multiple employer plan" covering any Employees. With respect to each Plan which is ERISA (a “Multiemployer Plan:
(a) with respect to events prior to the Closing, none of the Transferor, any Related Person, or their predecessors has incurred or has any reason to believe it has incurred or will incur any withdrawal liability; ”). No condition exists and no event has occurred which with the giving of notice would result in respect to any liability under Section 4201 of ERISA as Multiemployer Plan that presents a result material risk of a complete or partial withdrawal under subtitle E of Title IV of ERISA and neither the Parent nor any member of the Parent Group has, within the preceding six years, withdrawn in a complete or partial withdrawal from any multiemployer plan (within the meaning of Section 4203 of ERISAsection 4001 (a)(3) or a partial withdrawal (within the meaning of Section 4205 of ERISA); none of the Transferor, any Related Person, or their predecessors has received any notice of any claim or demand for complete or partial withdrawal liability;
(b) none of the Transferor, any Related Person, or their predecessors has received any notice or has any reason to believe that such Multiemployer Plan is in "reorganization" (within the meaning of Section 4241 of ERISA), that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, or that the Multiemployer Plan is or may become "insolvent" (within the meaning of Section 4241 of ERISA);
(c) no Multiemployer Plan is a party to any pending merger or asset or liability transfer under Part 2 of Subtitle E of Title IV of ERISA; and
(d) the PBGC has not instituted proceedings against the Multiemployer Plan.
(v) All contributions required to have been made by Transferor and each Related Person to any Plan under the terms of any such Plan or pursuant to any applicable collective bargaining agreement or Applicable Law have been made within the time period prescribed by any such PlanExcept as set forth on Schedule 4.19(c)(v), agreement or Applicable Law.
(vi) No no Employee is or may will become entitled to post-employment benefits of any kind by reason of employment in with any member of the BusinessParent Group, including including, without limitation, death or survivor benefits, medical or health benefits (whether or not insured), other than (aA) coverage provided pursuant to the terms of any Plan specifically identified as providing such coverage in Schedule 3.1.21(c)(vi) or mandated by section 4980B of the Code, Code or (bB) retirement benefits payable under any Plan qualified under section 401(a) of the Code or (c) deferred compensation accrued as a liability on the Balance Sheet or incurred after December 31, 1997 in the ordinary course of business consistent with the prior practice of Transferor, pursuant to the terms of a PlanCode. The consummation of the transactions contemplated by this Agreement or the Collateral Agreements will not (either alone or upon the occurrence of any additional subsequent events) result in an increase in the amount of compensation or benefits (whether of severance pay or otherwise) or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any Employee. No amounts payable under any Plan will fail to be deductible for federal income tax purposes by virtue of Sections 280G or 162(m) of the Code.
(vii) No Employee has accrued any additional benefits under the Floor Plan since July 1, 1995 (including earning any additional service towards a subsidized "early" retirement benefit).
(viii) Transferor does not maintain any Plan that is funded by a trust described in Section 501(c)(9) of the Code or subject to the provisions of Section 505 of the Code. Transferor has complied with the requirements of Section 4980B of the Code regarding the continuation of health care coverage under any Plan and the provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
(ix) No event, condition, or circumstance exists that could result in a material increase of the benefits provided under any Plan or the expense of maintaining any Plan from the level of benefits or expense incurred for the most recent fiscal year ended before the Closing. Except as set forth on Schedule 3.1.21(c)(ix), no event, condition, or circumstance exists that would prevent the amendment or termination of any Plan.
Appears in 1 contract
Compliance; Liability. (i) With respect to each Plan (No Plan, other than a Multiemployer Seller Pension Plan) that , is subject to section 412 of the Code or section 302 or Title IV of ERISA. As of the last day of the most recently ended fiscal year of the Seller Pension Plan, (A) no the "accumulated funding deficiencybenefit obligations" (within the meaning of Section 302 of ERISA and Section 412 the Financial Accounting Standards Board Statement No. 87) under such Plan did not exceed the fair market value of the Code) has been or could be expected assets of such Plan allocable to be incurred, whether or not waived, and no excise or other taxes have been or could be expected to be incurred or are due and owing with respect to such "accumulated benefit obligations," determined on the Plan because basis of any failure to comply with the minimum funding standards actuarial assumptions specified for financial statement purposes in the actuarial report prepared for such fiscal year of ERISA and the Code, (B) no proceeding has been or is expected to be initiated to terminate such Plan, and (C) no security under Section 401(a)(29) each of the Code has been or could be expected to be requiredwhich assumptions is reasonable.
(ii) No liability has been or is expected to be incurred by Transferor, Seller or any Related Person or the Business (either directly or indirectly, including as a result of an indemnification obligation) under or pursuant to Title I or IV of ERISA or otherwise or the penalty, excise tax or joint and several liability provisions of the Code relating to employee benefit plans that could, following the Closing, become or remain a liability of the Business or become a liability of the Company Buyer or of any employee benefit plan established or contributed to by the Company Buyer and, to the Knowledge best knowledge of each of TransferorSeller after due inquiry, no event, transaction or condition has occurred or exists that could result in any such liability to the Business Seller or, following the Closing, the CompanyBuyer.
(iii) Each of the Plans has been operated and administered in all respects in compliance with all Applicable Laws and the provisions of each PlanLaws, except for any failure so to comply that, individually or together with all other such failures, has not and will not result in a material liability or obligation on the part of the BusinessSeller, or, following the Closing, the CompanyBuyer, and has not had or resulted in, and will not have or result in, a Material Adverse Effect. There are no material pending or, to the Knowledge best knowledge of TransferorSeller after due inquiry, threatened claims, lawsuits, arbitrations or other action claims by or on behalf of any of the Plans, by any Employee or otherwise involving any such Plan or the assets of any Plan (other than routine claims for benefits). No Plan is or is expected to be under audit or investigation by the IRS, DOL, or any other Governmental Authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty. No "reportable event" within the meaning of Section 4043(b) of ERISA has occurred with respect to any Plan. Notwithstanding the foregoing, the representations set forth in this subsection (c) with respect to any Multiemployer Plan shall be made to Transferor's Knowledge.
(iv) No Plan is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or is a "multiple employer plan" within the meaning of section 4063 or 4064 of ERISA, and there has never been any "multiple employer plan" covering any Employees. With respect to each Plan which is a Multiemployer Plan:
(a) with respect to events prior to the Closing, none of the Transferor, any Related Person, or their predecessors has incurred or has any reason to believe it has incurred or will incur any withdrawal liability; no event has occurred which with the giving of notice would result in any liability under Section 4201 of ERISA as a result of a complete withdrawal (within the meaning of Section 4203 of ERISA) or a partial withdrawal (within the meaning of Section 4205 of ERISA); none of the Transferor, any Related Person, or their predecessors has received any notice of any claim or demand for complete or partial withdrawal liability;
(b) none of the Transferor, any Related Person, or their predecessors has received any notice or has any reason to believe that such Multiemployer Plan is in "reorganization" (within the meaning of Section 4241 of ERISA), that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, or that the Multiemployer Plan is or may become "insolvent" (within the meaning of Section 4241 of ERISA);
(c) no Multiemployer Plan is a party to any pending merger or asset or liability transfer under Part 2 of Subtitle E of Title IV of ERISA; and
(d) the PBGC has not instituted proceedings against the Multiemployer Plan.
(v) All contributions required to have been made by Transferor Seller and each Related Person to any Plan under the terms of any such Plan or pursuant to any applicable collective bargaining agreement or Applicable Law have been made within the earliest time period prescribed by any such Plan, agreement or Applicable Law.
(vi) No Transferred Employee is or may become entitled to post-post- employment benefits of any kind by reason of employment in the Businessby Seller, including including, without limitation, death or survivor benefits, medical or health benefits (whether or not insured), other than (a) coverage provided pursuant to the terms of any Plan specifically identified as providing such coverage in Schedule 3.1.21(c)(vi3.1.24
(a) or mandated by section 4980B of the Code, (b) retirement benefits payable under any Plan qualified under section 401(a) of the Code or (c) deferred compensation accrued as a liability on the Balance Sheet Sheets or incurred after December 31, 1997 2003 in the ordinary course of business consistent with the prior practice of TransferorSeller, pursuant to the terms of a Plan. The consummation of the transactions contemplated by this Agreement or the Collateral Agreements will not (either alone or upon the occurrence of any additional subsequent events) result in an increase in the amount of compensation or benefits (whether of severance pay or otherwise) or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any Transferred Employee. No amounts payable under any Plan will fail to be deductible for federal income tax purposes by virtue of Sections 280G or 162(m) of the Code.
(vii) No Employee has accrued any additional benefits under the Floor Plan since July 1, 1995 (including earning any additional service towards a subsidized "early" retirement benefit).
(viii) Transferor does not maintain any Plan that is funded by a trust described in Section 501(c)(9) of the Code or subject to the provisions of Section 505 of the Code. Transferor has complied with the requirements of Section 4980B of the Code regarding the continuation of health care coverage under any Plan and the provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
(ix) No event, condition, or circumstance exists that could result in a material increase of the benefits provided under any Plan or the expense of maintaining any Plan from the level of benefits or expense incurred for the most recent fiscal year ended before the Closing. Except as set forth on Schedule 3.1.21(c)(ix), no event, condition, or circumstance exists that would prevent the amendment or termination of any Plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Matthews International Corp)
Compliance; Liability. (i) With respect to each No Employee Benefit Plan (other than a Multiemployer Plan) that is subject to section Section 412 of the Code or section Section 302 or Title IV of ERISA, (A) no "accumulated funding deficiency" (within the meaning of Section 302 of ERISA and Section 412 . None of the Code) has been Purchased Assets is subject to any lien in favor of, or could be expected to be incurredenforceable by, whether or not waived, and no excise or other taxes have been or could be expected to be incurred or are due and owing with respect to the Plan because of any failure to comply with the minimum funding standards of ERISA and the Code, (B) no proceeding has been or is expected to be initiated to terminate such Plan, and (C) no security under Section 401(a)(29) of the Code has been or could be expected to be requiredPension Benefit Guaranty Corporation.
(ii) No liability has been or is expected to be incurred by Transferor, any Related Person Sellers or the Business (either directly or indirectly, including as a result of an indemnification obligation) Shareholder under or pursuant to Title I or IV of ERISA or otherwise or the penalty, excise tax or joint and several liability provisions of the Code relating to employee benefit plans that couldwould reasonably be expected, following the Closing, become or remain a liability of the Business or to become a liability of the Company Purchasers or of any employee benefit plan established or contributed to by the Company Purchasers and, to the Knowledge of each of TransferorSellers, no event, transaction or condition with respect to any Employee Benefit Plan has occurred or exists that could would reasonably be expected to result in any such liability to the Business or, following the Closing, the CompanyPurchasers.
(iii) Each of the Employee Benefit Plans has been operated and administered in all material respects in compliance with all Applicable Laws and the provisions of each Planany applicable Governmental Requirement, except for any failure so to comply that, individually or together with all other such failures, has not had and will would not reasonably be expected to result in a material liability or obligation on the part of the Business, or, following the Closing, the Company, and has not had or resulted in, and will not have or result in, a Material Adverse Effect. There are no material pending or, to the Knowledge of Transferor, threatened claims, lawsuits, arbitrations or other action by or on behalf of any of the Plans, by any Employee or otherwise involving any such Plan or the assets of any Plan (other than routine claims for benefits). No Plan is or is expected to be under audit or investigation by the IRS, DOL, or any other Governmental Authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty. No "reportable event" within the meaning of Section 4043(b) of ERISA has occurred with respect to any Plan. Notwithstanding the foregoing, the representations set forth in this subsection (c) with respect to any Multiemployer Plan shall be made to Transferor's Knowledge.
(iv) No Plan is a "multiple employer plan" within There are no outstanding liabilities of any Seller or the meaning of section 4063 or 4064 of ERISA, and there has never been any "multiple employer plan" covering any Employees. With respect to each Plan which is a Multiemployer Plan:
(a) Shareholder with respect to events prior to the Closing, none of the Transferor, any Related Person, labor union-sponsored pension fund or their predecessors has incurred or has any reason to believe it has incurred or will incur any withdrawal liability; no event has occurred which with the giving of notice would result in any liability under Section 4201 of ERISA as person employed by a result of a complete withdrawal (within the meaning of Section 4203 of ERISA) or a partial withdrawal (within the meaning of Section 4205 of ERISA); none of the Transferor, any Related Person, or their predecessors has received any notice supplier of any claim or demand for complete or partial withdrawal liability;
(b) none of the Transferor, any Related Person, or their predecessors has received any notice or has any reason to believe that such Multiemployer Plan is in "reorganization" (within the meaning of Section 4241 of ERISA), that increased contributions may be required to avoid a reduction in plan benefits Seller or the imposition of an excise tax, or that the Multiemployer Plan is or Shareholder regarding any labor union-sponsored pension funds for which either Purchasers may become "insolvent" (within the meaning of Section 4241 of ERISA);
(c) no Multiemployer Plan is a party to have any pending merger or asset or liability transfer under Part 2 of Subtitle E of Title IV of ERISA; and
(d) the PBGC has not instituted proceedings against the Multiemployer Planliability.
(v) All contributions required to have been made by Transferor and each Related Person to any Plan under the terms of any such Plan or pursuant to any applicable collective bargaining agreement or Applicable Law have been made within the time period prescribed by any such Plan, agreement or Applicable Law.
(vi) No Employee is or may become entitled to post-employment benefits of any kind by reason of employment in the Business, including death or survivor benefits, medical or health benefits (whether or not insured), other than (a) coverage provided pursuant to the terms of any Plan specifically identified as providing such coverage in Schedule 3.1.21(c)(vi) or mandated by section 4980B of the Code, (b) retirement benefits payable under any Plan qualified under section 401(a) of the Code or (c) deferred compensation accrued as a liability on the Balance Sheet or incurred after December 31, 1997 in the ordinary course of business consistent with the prior practice of Transferor, pursuant to the terms of a Plan. The consummation of the transactions contemplated by this Agreement or the Collateral Agreements will not (either alone or upon the occurrence of any additional subsequent events) result in an increase in the amount of compensation or benefits (whether of severance pay or otherwise) or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any Employee. No amounts payable under any Plan will fail to be deductible for federal income tax purposes by virtue of Sections 280G or 162(m) of the Code.
(vii) No Employee has accrued any additional benefits under the Floor Plan since July 1, 1995 (including earning any additional service towards a subsidized "early" retirement benefit).
(viii) Transferor does not maintain any Plan that is funded by a trust described in Section 501(c)(9) of the Code or subject to the provisions of Section 505 of the Code. Transferor has complied with the requirements of Section 4980B of the Code regarding the continuation of health care coverage under any Plan and the provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
(ix) No event, condition, or circumstance exists that could result in a material increase of the benefits provided under any Plan or the expense of maintaining any Plan from the level of benefits or expense incurred for the most recent fiscal year ended before the Closing. Except as set forth on Schedule 3.1.21(c)(ix), no event, condition, or circumstance exists that would prevent the amendment or termination of any Plan.
Appears in 1 contract
Compliance; Liability. (i) With respect to each Plan (other than a Multiemployer Plan) that is subject to section 412 of the Code or section 302 or Title IV of ERISA, (A) no "accumulated funding deficiency" (within the meaning of Section 302 of ERISA and Section 412 of the Code) has been or could be expected to be incurred, whether or not waived, and no excise or other taxes have been or could be expected to be incurred or are due and owing with respect to the Plan because of any failure to comply with the minimum funding standards of ERISA and the Code, (B) no proceeding has been or is expected to be initiated to terminate such Plan, and (C) no security under Section 401(a)(29) of the Code has been or could be expected to be required.
(ii) No liability has been or is expected to be incurred by Transferor, Seller or any Related Person or the Business (either directly or indirectly, including as a result of an indemnification obligation) under or pursuant to Title I or IV of ERISA or otherwise or the penalty, excise tax or joint and several liability provisions of the Code relating to employee benefit plans that could, following the Closing, become or remain a liability of the Business or become a liability of the Company Buyer or of any employee benefit plan established or contributed to by the Company Buyer and, to the Knowledge best knowledge of each of TransferorSeller after due inquiry, no event, transaction or condition has occurred or exists that could result in any such liability to the Business Seller or, following the Closing, the CompanyBuyer.
(iiiii) Each To the Knowledge of Sellers, each of the Plans has been operated and administered in all respects in compliance with all Applicable Laws and the provisions of each PlanLaws, except for any failure so to comply that, individually or together with all other such failures, has not and will not result in a material liability or obligation on the part of the BusinessSeller, or, following the Closing, the CompanyBuyer, and has not had or resulted in, and will not have or result in, a Material Adverse Effect. There are no material pending or, to the Knowledge of Transferor, threatened claims, lawsuits, arbitrations or other action by or on behalf of any of the Plans, by any Employee or otherwise involving any such Plan or the assets of any Plan .
(other than routine claims for benefits). iii) No Plan is or is expected to be under audit or investigation by the IRS, DOL, or any other Governmental Authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty. No "reportable event" a “multiemployer plan” within the meaning of Section 4043(b4001(a)(3) of ERISA has occurred with respect to any Plan. Notwithstanding the foregoing, the representations set forth in this subsection (c) with respect to any Multiemployer Plan shall be made to Transferor's Knowledge.
(iv) No Plan or is a "“multiple employer plan" ” within the meaning of section 4063 or 4064 of ERISA, and there has never been any "multiple employer plan" covering any Employees. With respect to each Plan which is a Multiemployer Plan:
(a) with respect to events prior to the Closing, none of the Transferor, any Related Person, or their predecessors has incurred or has any reason to believe it has incurred or will incur any withdrawal liability; no event has occurred which with the giving of notice would result in any liability under Section 4201 of ERISA as a result of a complete withdrawal (within the meaning of Section 4203 of ERISA) or a partial withdrawal (within the meaning of Section 4205 of ERISA); none of the Transferor, any Related Person, or their predecessors has received any notice of any claim or demand for complete or partial withdrawal liability;
(b) none of the Transferor, any Related Person, or their predecessors has received any notice or has any reason to believe that such Multiemployer Plan is in "reorganization" (within the meaning of Section 4241 of ERISA), that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, or that the Multiemployer Plan is or may become "insolvent" (within the meaning of Section 4241 of ERISA);
(c) no Multiemployer Plan is a party to any pending merger or asset or liability transfer under Part 2 of Subtitle E of Title IV of ERISA; and
(d) the PBGC has not instituted proceedings against the Multiemployer Plan.
(v) All contributions required to have been made by Transferor and each Related Person to any Plan under the terms of any such Plan or pursuant to any applicable collective bargaining agreement or Applicable Law have been made within the time period prescribed by any such Plan, agreement or Applicable Law.
(viiv) No Transferred Employee is or may become entitled to post-employment benefits of any kind by reason of employment in the Businessby Seller, including including, without limitation, death or survivor benefits, medical or health benefits (whether or not insured), other than (a) coverage provided pursuant to the terms of any Plan specifically identified as providing such coverage in Schedule 3.1.21(c)(vi) 6.18 or mandated by section 4980B of the Code, (b) retirement benefits payable under any Plan qualified under section 401(a) of the Code or (c) deferred compensation accrued as a liability on the Balance Sheet Sheets or incurred after December 31, 1997 2003 in the ordinary course of business consistent with the prior practice of TransferorSeller, pursuant to the terms of a Plan. The consummation of the transactions contemplated by this Agreement or the Collateral Agreements will not (either alone or upon the occurrence of any additional subsequent events) result in an increase in the amount of compensation or benefits (whether of severance pay or otherwise) or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any Employee. No amounts payable under any Plan will fail to be deductible for federal income tax purposes by virtue of Sections 280G or 162(m) of the Code.
(vii) No Employee has accrued any additional benefits under the Floor Plan since July 1, 1995 (including earning any additional service towards a subsidized "early" retirement benefit).
(viii) Transferor does not maintain any Plan that is funded by a trust described in Section 501(c)(9) of the Code or subject to the provisions of Section 505 of the Code. Transferor has complied with the requirements of Section 4980B of the Code regarding the continuation of health care coverage under any Plan and the provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
(ix) No event, condition, or circumstance exists that could result in a material increase of the benefits provided under any Plan or the expense of maintaining any Plan from the level of benefits or expense incurred for the most recent fiscal year ended before the Closing. Except as set forth on Schedule 3.1.21(c)(ix), no event, condition, or circumstance exists that would prevent the amendment or termination of any Plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Matthews International Corp)
