Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired Corporations. (b) Except as set forth in Part 2.16(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code. (c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees or former employees of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA). (d) With respect to each Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code). (e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA). (f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired Corporations. (g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)). (h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA. (i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code. (j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked. (k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits. (l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees. (m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service. (n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters. (o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.
Appears in 4 contracts
Samples: Merger Agreement (Integrated Systems Consulting Group Inc), Merger Agreement (Lipson David S), Merger Agreement (Safeguard Scientifics Inc Et Al)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a3.17(a) of the Company Disclosure Schedule identifies each salary, bonus, vacation, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, death and disability benefits, hospitalization, medical, life or other insurance, flexible benefits, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectivelyand each individual employment, the "Plans") change in control, severance, consulting or other similar agreement sponsored, maintained, contributed to or required to be contributed to to, or entered into by any of the Acquired Corporations or any ERISA Affiliate for the benefit of any current or former director or employee of any of the Acquired Corporations (collectively, the “Employee Plans”). Part 3.17(a) also identifies any reserve or required contribution for the benefit of any current or former employee of any of the Acquired CorporationsCorporations located in any foreign jurisdiction under any Legal Requirement.
(b) Except as set forth in Part 2.16(a3.17(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any Employee Plan for which it currently has any obligation or liability that is an employee pension benefit plan (as defined in Section 3(2) of ERISA, or any similar pension benefit plan under the Employee Retirement Income Security Act laws of 1974, as amended ("ERISA")any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ERISA for the benefit of employees or former employees of any of the Acquired Corporations (a "“Pension Plan"”). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c3.17(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to any: (i) any Employee Plan that is an employee welfare benefit plan (as defined in Section 3(1) of ERISAERISA or any similar welfare benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ), for the benefit of any employees current or former employees or directors of any of the Acquired Corporations (a "“Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA”).
(d) With respect to each Employee Plan, the Company has delivered or made available to Parent: (i) an accurate and complete copy of such Employee Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Employee Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, with respect to such Employee Plan, (iv) if such Employee Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts in effect relating to such Employee Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Employee Plan (if such Employee Plan is intended to be qualified under Section 401(a) of the Code).
(e) No Pension Plan is, or has been since January 1, 1996, subject to section 302 of ERISA or section 412 of the Code. No liability under Title IV or section 302 of ERISA has been incurred by the Company or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to the Company or any ERISA Affiliate of incurring any such liability. None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, except for the Acquired Corporations. None of the Acquired Corporations has ever been is a member of an "“affiliated service group" ” within the meaning of Section 414(m) of the Code. None of the Employee Plans identified in the Company Disclosure Schedule is a multiemployer plan (within the meaning of Section 3(37) of ERISA). None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "“withdrawal liability," ” as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None Except as disclosed in Part 3.17(f) of the Company Disclosure Schedule, none of the Acquired Corporations has any plan or commitment to create or enter into any Welfare Plan or any additional Pension Employee Plan, or to modify or change any existing Pension Employee Plan (other than to comply with applicable lawLegal Requirements) in a manner that would affect any current or former employee or director of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g3.17(g) of the Company Disclosure Schedule, no Employee Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee or director of any of the Acquired Corporations after any such employee's termination of service of such employee or director (other than (i) benefit coverage mandated by applicable lawLegal Requirements, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Welfare Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("“COBRA"”) have been complied with in all material respects. Part 2.16(h3.17(h) of the Company Disclosure Schedule describes all obligations COBRA beneficiaries of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRAAgreement.
(i) Each of the Employee Plans has been operated and administered in all material respects in accordance with its terms and with applicable Legal Requirements, including but not limited to ERISA ERISA, the Code and applicable foreign Legal Requirements. The Acquired Corporations have in all material respects performed all of their respective obligations under the CodeEmployee Plans.
(j) Each of the Employee Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination letter (or opinion letter, if applicable) from the Internal Revenue Service, and and, to the Company is not aware Knowledge of any reason why any the Company, nothing has occurred that would adversely affect such determination letter should be revokeddetermination.
(k) Except as set forth disclosed in either Part 2.16(k3.17(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Offer or the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute severance or severance payment) other payment or obligation to any current or former employee or director of any of the Acquired Corporations (whether or not under any Employee Plan), or materially increase the benefits payable or provided under any Employee Plan, or result in any acceleration of the time of payment or vesting of any such benefits. Without limiting the generality of the foregoing (and except as set forth in Part 3.17(k) of the Company Disclosure Schedule), the consummation of the Offer or the Merger will not result in the acceleration of vesting of any unvested Company Options. No amounts payable under the Employee Plans will fail to be deductible for federal income tax purposes by virtue of section 162(m) or 280G of the Code.
(l) Except as disclosed in Part 2.16(l3.17(l) of the Company Disclosure Schedule, there are no pending, or to the Knowledge of the Company, any threatened or anticipated claims by or on behalf of any Employee Plan, by any employee or beneficiary covered under any Employee Plan, or otherwise involving any Employee Plan (other than routine claims for benefits).
(m) The Company has taken all action necessary to adjust the number of shares, the exercise price, and any other relevant term of each outstanding equity-based award granted by the Company and other equity-based securities to take into account the Reverse Split.
(n) None of the Acquired Corporations, any Employee Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection with which an Acquired Corporation, any Employee Plan, any such trust, or any trustee or administrator thereof, or any party dealing with any Employee Plan or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) of ERISA or a Tax imposed pursuant to section 4975 or 4976 of the Code, in each case greater than $1,000 per occurrence or greater than $10,000 in the aggregate.
(o) Part 3.17(o) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amountsany other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "“at will" ” employees.
(mp) Part 2.16(m3.17(p) of the Company Disclosure Schedule identifies each Employee employee of any of the Acquired Corporations who is not fully available to perform work because of disability or other leave and sets forth the basis of such disability or leave and the anticipated date of return to full service.
(nq) Each Plan complies Except to the extent represented in all material respects with all applicable Legal Requirements. Each Section 3.17(i), each of the Acquired Corporations is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(or) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each Each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge Knowledge of any facts indicating that (i) the consummation of the Offer or the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of any of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.
(s) Except as set forth in Part 3.21(a) and Part 3.17(s) of the Company Disclosure Schedule, to the Knowledge of the Company, no person who is or was an officer or director of any of the Acquired Corporations has any right or claim against any of the Acquired Corporations, except for rights as an employee arising in the normal course (i) of such person’s employment relationship with any Acquired Corporation or (ii) under any Employee Plan.
Appears in 3 contracts
Samples: Merger Agreement (Borland Software Corp), Merger Agreement (Borland Software Corp), Merger Agreement (Starbase Corp)
Employee and Labor Matters; Benefit Plans. (aA) Part 2.16(aPART 2.15(A) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations Company for the benefit of any current or former employee of any the Company ("Employee"), except for Plans which would not require the Company to make payments or provide benefits having a value in excess of $25,000 in the Acquired Corporationsaggregate.
(bB) Except as set forth in Part 2.16(aPART 2.15(B) of the Company Disclosure Schedule, none the Company does not maintain, sponsor or contribute to, and, to the best of the Acquired Corporations maintains, sponsors or contributes to, and none knowledge of the Acquired Corporations Company and the Shareholder, has not at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees Employees or former employees of any of the Acquired Corporations Employees (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(cC) Except as set forth in Part 2.16(a) or Part 2.16(c) of the The Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes only to any: (i) those employee welfare benefit plan plans (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees Employees or former employees of any Employees which are described in PART 2.15(C) of the Acquired Corporations Disclosure Schedule (a the "Welfare PlanPlans"), or (ii) self-funded medical, dental or other similar Plan. None none of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule which is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(dD) With respect to each Plan, the Company has delivered to Parent: :
(iI) an accurate and complete copy of such Plan (including all amendments thereto); ;
(iiII) an accurate and complete copy of the annual reportreport filed, if required under ERISA, with respect to such Plan for the last two years; since its inception.
(iiiIII) an accurate and complete copy of the most recent summary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, with respect to such Plan, and all material employee communications relating to such Plan;
(ivIV) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; ;
(vV) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and and
(viVI) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(eE) None The Company is not required to be, and, to the best of the Acquired Corporations is or knowledge of the Company and the Shareholder, has ever never been required to be be, treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations The Company has ever never been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None To the best of the Acquired Corporations knowledge of the Company and the Shareholder, the Company has ever never made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(fF) None of the Acquired Corporations has The Company does not have any plan or commitment to create any additional Welfare Plan or any additional Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired CorporationsEmployee.
(gG) Except as set forth in Part 2.16(gPART 2.15(G) of the Company Disclosure Schedule, no Welfare Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations Employee after any such employeeEmployee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations Employees (or the employeesEmployees' beneficiaries)).
(hH) With respect to any Plan each of the Welfare Plans constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(iI) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(jJ) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and neither the Company nor the Shareholder is not aware of any reason why any such determination letter should be revoked.
(kK) Except as set forth in Part 2.16(kPART 2.15(K) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee Employee or director of any of the Acquired Corporations Company (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(lL) Part 2.16(lPART 2.15(L) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations Company as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amountsany other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. None of the Acquired Corporations The Company is not a party to to, and never has been a party to, any collective bargaining contract or other Contract with a labor union involving any of its employeesEmployees. All of the Company's employees of the Acquired Corporations are "at will" employees.
(mM) Part 2.16(mPART 2.15(M) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(nN) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations The Company is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters, except where the failure to so comply would not have a Material Adverse Effect on the Company.
(oO) Except as set forth in Part 2.16(oPART 2.15(O) of the Company Disclosure Schedule, each of the Acquired Corporations Company has good labor relations, and none of the Acquired Corporations Shareholder has any knowledge of any facts indicating no reason to believe that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the Company's employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employedCompany.
Appears in 3 contracts
Samples: Merger Agreement (Award Software International Inc), Merger Agreement (Award Software International Inc), Merger Agreement (Award Software International Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.15(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired Corporations.
(b) Except as set forth in Part 2.16(a2.15(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c2.15(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees or former employees of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(fe) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired Corporations.
(gf) Except as set forth in Part 2.16(g) 2.15 of the Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(hg) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations None of the Acquired Corporations has any obligation or liability as of the date of this Agreement under any of the provisions of COBRACOBRA which would reasonably be expected to have a Material Adverse Effect on the Acquired Corporations.
(ih) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(ji) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(kj) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither Neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(lk) Part 2.16(l2.15(k) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations Company as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amountsany other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All Except as set forth in Part 2.15 of the Company Disclosure Schedule, all of the employees of the Acquired Corporations are "at will" employees.
(ml) Part 2.16(m) To the best of the knowledge of the Company, there is no employee of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full serviceleave.
(nm) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters, except with respect to any back payment that might be required to be made by the Company because of the possible characterization of independent contractors as employees of the Company.
(on) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each Each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of any of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.
Appears in 2 contracts
Samples: Merger Agreement (Cooper & Chyan Technology Inc), Merger Agreement (Cadence Design Systems Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a3.16(a) of the Company Brainworks Disclosure Schedule identifies each salary, bonus, vacation, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, death and disability benefits, hospitalization, medical, life or other insurance, flexible benefits, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement and each other employee benefit plan or arrangement (collectively, the "Brainworks Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Brainworks Corporations for the benefit of any current or former employee of any of the Acquired Brainworks Corporations. Part 3.16(a) also identifies each Legal Requirement pursuant to which any of the Brainworks Corporations is required to establish any reserve or make any contribution for the benefit of any current or former employee located in any foreign jurisdiction.
(b) Except as set forth in Part 2.16(a3.16(a) of the Company Brainworks Disclosure Schedule, none of the Acquired Brainworks Corporations maintains, sponsors or contributes to, and none of the Acquired Brainworks Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of ERISA), or any similar pension benefit plan under the Employee Retirement Income Security Act laws of 1974, as amended ("ERISA")any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ERISA for the benefit of employees or former employees of any of the Acquired Brainworks Corporations (a "Brainworks Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c3.16(a) of the Company Brainworks Disclosure Schedule, none of the Acquired Brainworks Corporations maintains, sponsors or contributes to any: (i) any employee welfare benefit plan (as defined in Section 3(1) of ERISAERISA or any similar welfare benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ), for the benefit of any employees current or former employees or directors of any of the Acquired Brainworks Corporations (a "Brainworks Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Brainworks Plan, the Company Brainworks has delivered to Parentthe LLC: (i) an accurate and complete copy of such Brainworks Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Brainworks Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, with respect to such Brainworks Plan, (iv) if such Brainworks Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Brainworks Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Brainworks Plan (if such Brainworks Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Brainworks Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, except for the Brainworks Corporations. None of the Acquired Brainworks Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Brainworks Plans identified in the Brainworks Disclosure Schedule is a multiemployer plan (within the meaning of Section 3(37) of ERISA). None of the Brainworks Corporations has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Brainworks Corporations has any plan or commitment to create any Brainworks Welfare Plan or any additional Brainworks Pension Plan, or to modify or change any existing Brainworks Welfare Plan or Brainworks Pension Plan (other than to comply with applicable law) in a manner that would affect any current or former employee or director of any of the Acquired Brainworks Corporations.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no No Brainworks Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee or director of any of the Acquired Brainworks Corporations after any such employee's termination of service of such employee or director (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Brainworks Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") COBRA have been complied with in all material respects. Part 2.16(h3.17(h) of the Company Brainworks Disclosure Schedule describes all obligations of the Acquired Brainworks Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Brainworks Plans has been operated and administered in all material respects in accordance with its terms and with applicable Legal Requirements, including but not limited to ERISA ERISA, the Code and the Codeapplicable foreign Legal Requirements.
(j) Each of the Brainworks Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service, and the Company is not aware of any reason why any nothing has occurred that would adversely affect such determination letter should be revokeddetermination.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither Neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute parachute, severance or severance payment) other payment or obligation to any current or former employee or director of any of the Acquired Brainworks Corporations (whether or not under any Plan), or materially increase the benefits payable or provided under any Brainworks Plan, or result in any acceleration of the time of payment or vesting of any such benefits. Without limiting the generality of the foregoing (and except as set forth in Part 3.16(k) of Brainworks Disclosure Schedule), the consummation of the Merger will not result in the acceleration of vesting of any unvested Brainworks Options.
(l) Part 2.16(l3.16(l) of the Company Brainworks Disclosure Schedule contains a list of all salaried employees of each of the Acquired Brainworks Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amountsany other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. None of the Acquired Brainworks Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Brainworks Corporations are "at will" employees.
(m) Part 2.16(m3.16(m) of the Company Brainworks Disclosure Schedule identifies each Employee employee of any of the Brainworks Corporations who is not fully available to perform work because of disability or other leave and sets forth the basis of such disability or leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Brainworks Corporations is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) Each of the Company Disclosure Schedule, each of the Acquired Brainworks Corporations has good labor relations, and none of the Acquired Brainworks Corporations has any knowledge of any facts indicating that that: (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Brainworks Corporations, ; or (ii) any of the employees of any of the Acquired Brainworks Corporations intends to terminate his or her employment with the Acquired Corporation AAHoldings Entity with which such employee is employed.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc), Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.15(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations Ibex for the benefit of any current or former employee of any Ibex ("Employee"), except for Plans which would not require Ibex to make payments or provide benefits having a value in excess of $10,000 in the Acquired Corporationsaggregate.
(b) Except as set forth in Part 2.16(a2.15(a) of the Company Disclosure Schedule, none Ibex does not maintain, sponsor or contribute to, and, to the best of the Acquired Corporations maintainsknowledge of Ibex and the Designated Shareholders, sponsors or contributes to, and none of the Acquired Corporations has not at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees Employees or former employees of any of the Acquired Corporations Employees (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations Ibex maintains, sponsors or contributes only to any: (i) those employee welfare benefit plan plans (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees Employees or former employees of any Employees which are described in Part 2.15(c) of the Acquired Corporations Disclosure Schedule (a the "Welfare PlanPlans"), or (ii) self-funded medical, dental or other similar Plan. None none of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule which is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company Ibex has delivered to Parent: Castelle:
(i) an accurate and complete copy of such Plan (including all amendments thereto); ;
(ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; ;
(iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, and all material employee communications relating to such Plan;
(iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; ;
(v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and and
(vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None Ibex is not required to be, and, to the best of the Acquired Corporations is or knowledge of Ibex and the Designated Shareholders, has ever never been required to be be, treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations Ibex has ever never been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None To the best of the Acquired Corporations knowledge of Ibex and the Designated Shareholders, Ibex has ever never made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has Ibex does not have any plan or commitment to create any additional Welfare Plan or any additional Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired CorporationsEmployee.
(g) Except as set forth in Part 2.16(g2.15(g) of the Company Disclosure Schedule, no Welfare Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations Employee after any such employeeEmployee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations Employees (or the employeesEmployees' beneficiaries)).
(h) With respect to any Plan each of the Welfare Plans constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and neither Ibex nor any of the Company Designated Shareholders is not aware of any reason why any such determination letter should be revoked.
(k) Except as set forth in Part 2.16(k2.15(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee Employee or director of any of the Acquired Corporations Ibex (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l2.15(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations Ibex as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amountsany other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. None of the Acquired Corporations Ibex is not a party to any collective bargaining contract or other Contract with a labor union involving any of its employeesEmployees. All of the Ibex's employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m2.15(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations Ibex is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o2.15(o) of the Company Disclosure Schedule, each of the Acquired Corporations Ibex has good labor relations, and none of the Acquired Corporations Designated Shareholders has any knowledge of any facts indicating reason to believe that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the Ibex's labor relations of any of the Acquired Corporationsrelations, or (ii) any of the Ibex's employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employedIbex.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization and Merger (Castelle \Ca\), Agreement and Plan of Reorganization and Merger (Castelle \Ca\)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a) of the Company Disclosure Schedule identifies each salary, bonus, vacation, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, death and disability benefits, hospitalization, medical, life or other insurance, flexible benefits, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement and each other employee benefit plan or arrangement (collectively, the "Company Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations AAHoldings Entities for the benefit of any current or former employee of any of the Acquired CorporationsAAHoldings Entities. Part 2.16(a) also identifies each Legal Requirement pursuant to which any of the AAHoldings Entities is required to establish any reserve or make any contribution for the benefit of any current or former employee located in any foreign jurisdiction.
(b) Except as set forth in Part 2.16(a) of the Company Disclosure Schedule, none of the Acquired Corporations AAHoldings Entities maintains, sponsors or contributes to, and none of the Acquired Corporations AAHoldings Entities has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), or any similar pension benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ERISA for the benefit of employees or former employees of any of the Acquired Corporations AAHoldings Entities (a "Company Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations AAHoldings Entities maintains, sponsors or contributes to any: (i) any employee welfare benefit plan (as defined in Section 3(1) of ERISAERISA or any similar welfare benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ), for the benefit of any employees current or former employees or directors of any of the Acquired Corporations AAHoldings Entities (a "Company Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Company Plan, the Company LLC has delivered to ParentBrainworks: (i) an accurate and complete copy of such Company Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Company Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, with respect to such Company Plan, (iv) if such Company Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Company Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Company Plan (if such Company Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations AAHoldings Entities is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, except for the AAHoldings Entities. None of the Acquired Corporations AAHoldings Entities has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations Company Plans identified in the Company Disclosure Schedule is a multiemployer plan (within the meaning of Section 3(37) of ERISA). None of the AAHoldings Entities has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations AAHoldings Entities has any plan or commitment to create any Company Welfare Plan or any additional Company Pension Plan, or to modify or change any existing Company Welfare Plan or Company Pension Plan (other than to comply with applicable law) in a manner that would affect any current or former employee or director of any of the Acquired CorporationsAAHoldings Entities.
(g) Except as set forth in Part 2.16(g) of the No Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee or director of any of the Acquired Corporations AAHoldings Entities after any such employee's termination of service of such employee or director (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Company Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h2.17(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations AAHoldings Entities as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Company Plans has been operated and administered in all material respects in accordance with its terms and with applicable Legal Requirements, including but not limited to ERISA ERISA, the Code and the Codeapplicable foreign Legal Requirements.
(j) Each of the Company Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service, and the Company is not aware of any reason why any nothing has occurred that would adversely affect such determination letter should be revokeddetermination.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither Neither the execution, delivery or performance of this Agreement, nor the consummation of the Conversion or the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute parachute, severance or severance payment) other payment or obligation to any current or former employee or director of any of the Acquired Corporations AAHoldings Entities (whether or not under any Company Plan), or materially increase the benefits payable or provided under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations AAHoldings Entities as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amountsany other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. None of the Acquired Corporations AAHoldings Entities is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations AAHoldings Entities are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee employee of any of the AAHoldings Entities who is not fully available to perform work because of disability or other leave and sets forth the basis of such disability or leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations AAHoldings Entities is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) Each of the Company Disclosure Schedule, each of the Acquired Corporations AAHoldings Entities has good labor relations, and none of the Acquired Corporations AAHoldings Entities has any knowledge of any facts indicating that that: (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, AAHoldings Entities; or (ii) any of the employees of any of the Acquired Corporations AAHoldings Entities intends to terminate his or her employment with the Acquired Corporation AAHoldings Entity with which such employee is employed.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc), Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.17(a) of the Company Disclosure Schedule identifies each salary, bonus, vacation, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, death or disability benefits, hospitalization, medical, life or other insurance, flexible benefits, supplemental unemployment benefits, profit-sharing, pension pension, retirement or retirement other employee benefit plan, program or agreement (collectivelymaintained, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations Company for the benefit of any current or former employee of any the Company. (All plans, programs and agreements of the Acquired Corporationstype referred to in the prior sentence are referred to in this Agreement as the "Plans.") None of the Plans required to be identified in the Company Disclosure Schedule is a multiemployer plan (within the meaning of Section 3(37) of ERISA).
(b) Except as set forth in Part 2.16(a2.17(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors Company does not sponsor or contributes contribute to, and none of the Acquired Corporations has not at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) or any similar pension benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) , for the benefit of employees any current or former employees of any employee or director of the Acquired Corporations Company (a "Pension Plan"). None of the Pension Plans required to be identified in Part 2.16(a2.17(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c2.17(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintainsCompany does not maintain, sponsors sponsor or contributes contribute to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISA) or any similar welfare benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) , for the benefit of any employees current or former employees of any employee or director of the Acquired Corporations Company (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for each of the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies of the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None Except as set forth in Part 2.16(e) of the Acquired Corporations Company Disclosure Schedule, the Company is or not and has ever never been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations The Company has ever never been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations The Company has ever never made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to any subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations The Company has any no plan or commitment to create any Welfare additional Pension Plan or any additional Pension Welfare Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any current or former employee of any or director of the Acquired CorporationsCompany.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no No Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any or director of the Acquired Corporations Company after any such employee's termination of service of such employee or director (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h2.17(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement Company under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA ERISA, the Code and the Codeapplicable foreign Legal Requirements.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination letter as to its qualification from the Internal Revenue Service, and nothing has occurred that would adversely affect the ability of the Company is not aware of any reason why any to rely on each such determination letter should be revokedletter.
(k) Except as set forth in Part 2.16(k2.17(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute parachute, severance or severance payment) other payment or obligation to any current or former employee or director of any of the Acquired Corporations Company (whether or not under any Plan), or materially increase the benefits payable or provided under any Plan, or result in any acceleration of the time of payment payment, provision or vesting of any such benefits. Without limiting the generality of the foregoing (and except as set forth in Part 2.17(k) of the Company Disclosure Schedule), the consummation of the Merger will not result in the acceleration of vesting of any unvested Company Options.
(l) Part 2.16(l2.17(l) of the Company Disclosure Schedule contains a list of all salaried employees of identifies each employee of the Acquired Corporations Company as of the date of this Agreement, and correctly reflects, in all material respects, their base salariesthe current salary and any other compensation payable to such employee (including compensation payable pursuant to bonus, their targeted annual bonus amountsdeferred compensation or commission arrangements), their dates such employee's employer, date of employment hire and their positionsposition and the principal office of such employee. None of the Acquired Corporations The Company is not a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations Company are "at will" employees.
(m) Part 2.16(m2.17(m) of the Company Disclosure Schedule identifies each Employee employee of the Company who is not fully available to perform work because of disability or other leave and sets forth the basis of such disability or leave and the anticipated date of such employee's return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations The Company is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the The Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations Company has any no knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired CorporationsCompany, or (ii) as of the date of this Agreement, any of the employees of the Acquired Corporations intends Company intend to terminate his or her employment with the Acquired Corporation with which such employee is employedCompany.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Quantum Corp /De/), Agreement and Plan of Merger and Reorganization (Meridian Data Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.15(a) of the Company Disclosure Schedule contains a list of all salaried employees of the Company as of the date of this Agreement whose annual salaries are greater than $60,000, and correctly reflects their salaries, any other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. The Company is not a party to any collective bargaining contract or other Contract with a labor union involving any of its employees.
(b) Part 2.15(b) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, individually referred to as a "Company Plan" and collectively referred to as the "Company Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations Company for the benefit of any current or former employee of any of the Acquired CorporationsCompany.
(bc) Except as set forth in Part 2.16(a) The Company does not maintain, sponsor or contribute to, and, to the best of the Company Disclosure Schedule, none knowledge of the Acquired Corporations maintainsCompany, sponsors or contributes to, and none of the Acquired Corporations Company has not at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations Company (a "Company Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(cd) Except as set forth in Part 2.16(a) The Company does not maintain, sponsor or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes contribute to any: (i) any employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees or former employees of any of the Acquired Corporations Company (a "Company Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the except for those Company Welfare Plans identified described in Part 2.16(a2.15(d) of the Company Disclosure Schedule Schedule, none of which is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(de) With respect to each Company Plan, the Company has delivered to Parent: :
(i) an accurate and complete copy of such Company Plan (including all amendments thereto); ;
(ii) an accurate and complete copy of the annual report, report (if required under ERISA, ) with respect to such Company Plan for the last two years; each of 1994 and 1995;
(iii) an accurate and complete copy of (A) the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan Modifications (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.required
Appears in 2 contracts
Samples: Merger Agreement (Andataco), Merger Agreement (Ipl Systems Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a) of the Company Disclosure Schedule identifies (i) each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any each of the Acquired Corporations for the benefit of any current or former employee of any the respective Acquired Corporation, except for Plans which would not require the respective Acquired Corporation to make payments or provide benefits having a value in excess of $25,000 in the aggregate, and (ii) which current or former employees of the Acquired Corporations.
(b) Except as set forth in Part 2.16(a) of the Company Disclosure Schedule, none Corporations are covered by such Plans. None of the Acquired Corporations maintains, sponsors or contributes to, and and, to the best of the knowledge of the Company, none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees current or former employees of any of the Acquired Corporations (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none Each of the Acquired Corporations maintains, sponsors or contributes only to any: (i) those employee welfare benefit plan plans (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees current or former employees of any of the Acquired Corporations which are described in Part 2.16(c) of the Disclosure Schedule (a the "Welfare PlanPlans"), or (ii) self-funded medical, dental or other similar Plan. None none of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule which is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) . With respect to each Plan, except as set forth in Part 2.16(d) of the Disclosure Schedule, the Company has delivered to Parent or a Representative of Parent: (i) an accurate and complete copy of such Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two yearsyears and, if such annual reports for the last two years were filed on Form 5500-R, the most recently filed Form 5500-C with respect to such plan; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, and all material employee communications relating to such Plan; (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all material Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) . None of the Acquired Corporations is or required to be, and, to the best of the knowledge of the Company, none of the Acquired Corporations has ever been required to be be, treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None , and none of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None To the best of the knowledge of the Company, none of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) . None of the Acquired Corporations has any plan or commitment to create any additional Welfare Plan or any additional Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any current or former employee of any of the Acquired Corporations.
(g) . Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no Welfare Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations after any such employee's termination of service (other than than: (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, ; (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet, ; and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the such employees' beneficiaries)).
(h) . With respect to any Plan each of the Welfare Plans constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) . Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(k) . Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.
Appears in 2 contracts
Samples: Merger Agreement (Siebel Systems Inc), Merger Agreement (Siebel Systems Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.14(a) of the Disclosure Schedule contains a list of all salaried employees of the Company as of the date of this Agreement, and correctly reflects their salaries, any other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. The Company is not a party to any collective bargaining contract or other Contract with a labor union involving any of its employees.
(b) There is no employee of the Company who is not fully available to perform work because of disability or other leave.
(c) Part 2.14(c) of the Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, individually referred to as a "Plan" and collectively referred to as the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations Company for the benefit of any current or former employee of any of the Acquired CorporationsCompany.
(bd) Except as set forth in Part 2.16(a2.13(d) of the Company Disclosure Schedule, none of the Acquired Corporations maintainsCompany does not maintain, sponsors sponsor or contributes contribute to, and none of the Acquired Corporations Company has not at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations Company (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(ce) Except as set forth in Part 2.16(a) The Company does not maintain, sponsor or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes contribute to any: (i) any employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees or former employees of any of the Acquired Corporations Company (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the except for those Welfare Plans identified described in Part 2.16(a2.15(e) of the Company Disclosure Schedule Schedule, none of which is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(df) With respect to each Plan, the Company has delivered to Parent: ADAC:
(i) an accurate and complete copy of such Plan (including all amendments thereto); ;
(ii) an accurate and complete copy of the annual report, report (if required under ERISA, ) with respect to such Plan for the last two years; each of 1994 and 1995;
(iii) an accurate and complete copy of (A) the most recent summary plan description, together with each Summary of Material Modifications, Modifications (if required under ERISA, ) with respect to such Plan, and (B) each material employee communication relating to such Plan;
(iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies of the most recent financial statements thereof; ;
(v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and and
(vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(eg) None of The Company is not required to be, and the Acquired Corporations is or Company has ever never been required to be be, treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations The Company has ever never been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations The Company has ever never made a complete or partial withdrawal from a multi-employer "multiemployer plan, " (as such term is defined in Section 3(37) of ERISA, ) resulting in "withdrawal liability," (as such term is defined in Section 4201 of ERISA (ERISA), without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(fh) None of the Acquired Corporations has The Company does not have any plan or commitment to create any additional Welfare Plan or any additional Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired Corporations).
(gi) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no No Welfare Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations Company after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations Company (or the employees' their beneficiaries)).
(hj) With respect to any Plan each of the Welfare Plans constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(ik) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(jl) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and neither the Company nor any of the Designated Shareholders is not aware of any reason why any such determination letter should be revoked.
(km) Except as set forth in Part 2.16(k2.14(m) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonusbonus payment, golden parachute payment, severance payment or severance payment) other payment to any current or former employee or director of any of the Acquired Corporations Company (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies The Company is in all material respects compliance with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Requirements and Contracts relating to employment, employment practices, employee compensation, wages, bonuses and terms and conditions of employment, including employee compensation matters. The Company has paid all sums due and owing all employees and independent contractors of the Company for all periods ending on or prior to the Closing Date or has made an appropriate reserve therefor in the Unaudited Financial Statements.
(o) Except The Company has good labor relations, and, except as set forth in Part 2.16(o2.14(o) of the Company Disclosure Schedule, each neither the Company nor any of the Acquired Corporations has good labor relations, and none of the Acquired Corporations Designated Shareholders has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the Company's labor relations of any of the Acquired Corporationsrelations, or (ii) any of the Company's employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employedCompany.
Appears in 1 contract
Samples: Merger Agreement (Adac Laboratories)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a) of the Company Disclosure Schedule Letter identifies each salary, bonus, vacation, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, death and disability benefits, hospitalization, medical, life or other insurance, flexible benefits, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement and each other employee benefit plan or arrangement (collectively, the "PlansPLANS") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations Companies as of the date of this Agreement for the benefit of any current or former employee of any of the Acquired CorporationsCompanies. Part 2.16(a) of the Company Disclosure Letter also identifies each Legal Requirement pursuant to which any of the Acquired Companies is required, as of the date of this Agreement, to establish any reserve or make any contribution for the benefit of any current or former employee located in any foreign jurisdiction.
(b) Except as set forth in Part 2.16(a2.16(b) of the Company Disclosure ScheduleLetter, none of the Acquired Corporations Companies maintains, sponsors or contributes to, and none of the Acquired Corporations Companies has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any similar pension benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations Companies (a "Pension PlanPENSION PLAN"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule Letter is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure ScheduleLetter, as of the date of this Agreement, none of the Acquired Corporations Companies maintains, sponsors or contributes to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISAERISA or any similar welfare plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees current or former employees or directors of any of the Acquired Corporations Companies (a "Welfare PlanWELFARE PLAN"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule Letter is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered or made available to Parent: (i) an accurate and complete copy of such Plan (including all amendments thereto); (ii) except as set forth in Part 2.16(d)(ii) of the Company Disclosure Letter, an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.amendments
Appears in 1 contract
Samples: Merger Agreement (Act Networks Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a) of the Company Disclosure Schedule identifies each salary, bonus, vacation, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, death and disability benefits, hospitalization, medical, life or other insurance, flexible benefits, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement and each other employee benefit plan or arrangement (collectively, the "Employee Plans") ), including the Transition Plan, sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired Corporations. Part 2.16(a) also identifies each Legal Requirement pursuant to which any of the Acquired Corporations is required to establish any reserve or make any contribution for the benefit of any current or former employee located in any foreign jurisdiction.
(b) Except as set forth in Part 2.16(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any similar pension benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ERISA for the benefit of employees or former employees of any of the Acquired Corporations (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to any: (i) any employee welfare benefit plan (as defined in Section 3(1) of ERISAERISA or any similar welfare benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ), for the benefit of any employees current or former employees or directors of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Employee Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Employee Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Employee Plan for the last two three years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, with respect to such Employee Plan, (iv) if such Employee Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Employee Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Employee Plan (if such Employee Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, except for the Acquired Corporations. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Employee Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multiemployer plan (within the meaning of Section 3(37) of ERISA). None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any current or former employee or director of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no No Employee Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee or director of any of the Acquired Corporations after any such employee's termination of service of such employee or director (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Employee Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Employee Plans has been operated and administered in all material respects in accordance with its terms and with applicable Legal Requirements, including but not limited to without limitation ERISA and the Code, except to the extent that any violation of the applicable Legal Requirements has not had and would not be reasonably likely to have a Material Adverse Effect on the Acquired Corporations. The Acquired Corporations have performed in all material respects all of their respective obligations under the Employee Plans.
(j) Each of the Employee Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service, and to the Company is not aware knowledge of any reason why any the Company, nothing has occurred that would adversely affect such determination letter should be revokeddetermination.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither Neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute parachute, severance or severance payment) other payment or obligation to any current or former employee or director of any of the Acquired Corporations (whether or not under any Employee Plan), or materially increase the benefits payable or provided under any Employee Plan, or result in any acceleration of the time of payment or vesting of any such benefits. Without limiting the generality of the foregoing (and except as set forth in Part 2.16(k) of the Company Disclosure Schedule), the consummation of the Merger will not result in the acceleration of vesting of any unvested Company Options.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amountsany other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees, and except as set forth in Part 2.16(l) of the Company Disclosure Schedule, may be terminated without any of the Acquired Corporations being required to make any payment to any such employee.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee employee of any of the Acquired Corporations who is not fully available to perform work because of disability or other leave and sets forth the basis of such disability or leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects Part 2.16(n) of the Company Disclosure Schedule identifies each employee or former employee of any of the Acquired Corporations who has been terminated or who has received notice of termination since July 1, 2000, and the respective dates with all applicable Legal Requirements. respect to each such individual of such notice and (if applicable) such termination.
(o) Each of the Acquired Corporations is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(op) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each Each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of any of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.
(q) The headcount reductions effected by the Acquired Corporations in 2001 were effected in compliance with all applicable Legal Requirements and Contracts. The Company has delivered to Parent true and correct copies of all correspondence, documents and other written materials relating to such reductions.
Appears in 1 contract
Samples: Merger Agreement (Global Sports Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.15(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired CorporationsCorporations ("Employee"), except for (1) Plans which would not require any of the Acquired Corporations to make payments or provide benefits having a value in excess of $25,000 in the aggregate and (2) except for the Company's 2000 Merit Compensation Plan and 2000 Incentive Compensation Plant.
(b) Except as set forth in Part 2.16(a2.15(b) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and and, to the Knowledge of the Company, none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees Employees or former employees of any of the Acquired Corporations Employees (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none Each of the Acquired Corporations maintains, sponsors or contributes only to any: (i) those employee welfare benefit plan plans (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees Employees or former employees of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified Employees which are described in Part 2.16(a2.15(c) of the Company Disclosure Schedule (the "Welfare Plans"), none of which is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered or made available to Parent: :
(i) an accurate and complete copy of such Plan (including all amendments thereto); ;
(ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; ;
(iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, and all material employee communications relating to such Plan;
(iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; ;
(v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and and
(vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or are required to be, and, to the Knowledge of the Company, has ever been required to be be, treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None To the Knowledge of the Company, none of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any additional Welfare Plan or any additional Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired CorporationsEmployee.
(g) Except as set forth in Part 2.16(g2.15(g) of the Company Disclosure Schedule, no Welfare Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations Employee after any such employeeEmployee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations Employees (or the employeesEmployees' beneficiaries)).
(h) With respect to any Plan each of the Welfare Plans constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(k) Except as set forth in Part 2.16(k2.15(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee Employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l) of the The Company Disclosure Schedule contains has provided Parent a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and such list correctly reflects, in all material respects, their base salaries, their targeted annual bonus amountsany other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving representing any of its employeesEmployees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m2.15(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o2.15(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, relations and none of the Acquired Corporations Company has any knowledge of any facts indicating no Knowledge that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any officer or head of the employees facility of any of the Acquired Corporations intends to terminate his or her employment with the such Acquired Corporation with which such employee is employedCorporation.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Axys Pharmecueticals Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "PlansCOMPANY PLANS") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations Company for the benefit of any current or former employee of any of the Acquired CorporationsCompany.
(b) Except as set forth in Part 2.16(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintainsCompany does not maintain, sponsors sponsor or contributes contribute to, and none of the Acquired Corporations it has not at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations Company (a "Pension PlanCOMPANY PENSION PLAN"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations maintainsCompany does not maintain, sponsors sponsor or contributes contribute to any: (i) any employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees or former employees of the Company including any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental dental, or other similar PlanCompany Plan (a "COMPANY WELFARE PLAN"). None of the Company Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Company Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Company Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan descriptionSummary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Company Plan, (iv) if such Company Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies of the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Company Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Company Plan (if such Company Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations The Company is or not and has ever never been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations The Company has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever never made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations The Company has any plan no plans or commitment to create any Welfare Plan or any additional Pension Company Plan, or to modify or change any existing Pension Company Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired CorporationsCompany.
(g) Except as set forth in Part 2.16(g) of the No Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations Company after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations Company (or the employees' beneficiaries)).
(h) With respect to any Company Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.Company
Appears in 1 contract
Samples: Merger Agreement (Megabios Corp)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(aSchedule 4.18(a)(i) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations SRC for the benefit of any employee of SRC ("Employee"). Schedule 4.18(a)(ii) identifies the schedule of payments under SRC's deferred compensation and incentive compensation programs. Except as specified in Schedule 4.18(a)(i) and payments under SRC's 401(k) plan, or as otherwise required by law, SRC has no obligation to any current or former employee or beneficiary of such individuals for any of the Acquired Corporationsdeferred compensation or other deferred payments.
(b) Except as set forth in Part 2.16(a) of the Company Disclosure ScheduleSchedule 4.18(a)(i), none of the Acquired Corporations maintainsSRC does not maintain, sponsors sponsor or contributes contribute to, and none of the Acquired Corporations and, has not at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees Employees or former employees of any of the Acquired Corporations Employees (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations SRC maintains, sponsors or contributes only to any: (i) those employee welfare benefit plan plans (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees Employees or former employees of any of Employees which are described in Schedule 4.18(a) (the Acquired Corporations (a "Welfare PlanPlans"), or (ii) self-funded medical, dental or other similar Plan. None none of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule which is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company SRC has prepared and delivered to Parent: Buyer:
(i) an accurate and complete copy of such Plan (including all amendments thereto); ;
(ii) an accurate and complete copy of the completed annual reportreports, if required under ERISA, with respect to such Plan for the last two years; ;
(iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, and all material employee communications relating to such Plan;
(iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies of the most recent financial statements thereof; ;
(v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping record keeping agreements; and and
(vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations SRC is or not and has ever never been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations SRC has ever never been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations SRC has ever never made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has SRC does not have any plan or commitment to create any additional Welfare Plan or any additional Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired CorporationsEmployee.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no No Welfare Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations Employee after any such employeeEmployee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations Employees (or the employeesEmployees' beneficiaries)).
(h) With respect to any Plan each of the Welfare Plans constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each Except as specified in Schedule 4.18(i), each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each Except as specified in Schedule 4.18(i), each of the Plans intended to be qualified under Section 401(a) of the Code has received (or is the subject of) a favorable determination from the Internal Revenue Service, and neither SRC nor any of the Company Stockholders is not aware of any reason why any such determination letter should could reasonably be expected to be revoked.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure ScheduleSchedule 4.18(k), neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger sale of Shares or any of the other transactions contemplated by this Agreement, will result in any payment by SRC (including any bonus, golden parachute or severance payment) to any current or former employee Employee or director of any of the Acquired Corporations SRC (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(lSchedule 4.18(l) of the Company Disclosure Schedule contains a list of all salaried employees Employees of each of the Acquired Corporations SRC as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amountsany other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. None Schedule 4.18(l) also contains a list of all Employees of SRC with security clearances and the Acquired Corporations level of such security clearance. SRC is not a party to any collective bargaining contract or other Contract with a labor union involving any of its employeesEmployees. All Except as specified in Schedule 4.18(l), all of the SRC's employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(mExcept as set forth on Schedule 4.18(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of there are no Employees currently on disability or other leave and sets forth the basis of such leave and the anticipated date of return to full serviceleave.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations SRC is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation mattersmatters including without limitation Legal Requirements respecting employment discrimination, workers' compensation, family and medical leave, the Immigration Reform and Control Act, and occupational safety and health requirements, and has not and is not engaged in any unfair labor practice.
(o) Except Neither SRC nor any Shareholder has made any representation or promise to any employee of SRC regarding any benefits, compensation or other payments that might be paid or distributed by SRC to any employee of SRC as set forth in Part 2.16(o) a result of the Company Disclosure Scheduleconsummation of any transaction involving a change of control of SRC, each of including the Acquired Corporations transaction contemplated hereby.
(p) SRC has good labor relationsrelations generally with its Employees.
(q) All persons classified by SRC as independent contractors do satisfy and have satisfied the requirements of law in effect at that time to be so classified, and none of SRC has fully and accurately reported their compensation on IRS Forms 1099 when required to do so, except to the Acquired Corporations has extent that any knowledge misclassification of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement such person will not have a material adverse effect on SRC.
(r) There is no charge or compliance proceeding actually pending or, to the labor relations best knowledge of SRC threatened against SRC before the Equal Employment Opportunity Commission or any of the Acquired Corporationsstate, local, or (ii) any foreign agency responsible for the prevention of the employees of the Acquired Corporations intends to terminate his or her unlawful employment with the Acquired Corporation with which such employee is employedpractices.
Appears in 1 contract
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.15(a) of the Company Disclosure Schedule identifies each “employee benefit plan” within the meaning of Section 3(3) of ERISA and each other employee benefit plan, program or arrangement at any time maintained, sponsored or contributed to (or required to be contributed to) by the Company or its Subsidiaries or with respect to which the Company or its Subsidiaries has any liability or potential liability including, but not limited to, Welfare Plans (as defined below), Pension Plans (as defined below), salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "“Plans") sponsored, maintained, contributed ”). The Company has taken all commercially reasonable efforts to or required to be contributed to by any ensure that every employee of the Acquired Corporations Company and its Subsidiaries (“Employee”) (whether such Employee is a United States citizen or otherwise) is legally authorized to work for the benefit of any current or former employee of any of Company and its Subsidiaries in the Acquired CorporationsUnited States.
(b) Except as set forth in listed on Part 2.16(a2.15(b) of the Company Disclosure Schedule, none neither the Company nor any of the Acquired Corporations its Subsidiaries maintains, sponsors or contributes to, and none of the Acquired Corporations or has at any time in the past actual or potential liability with respect to, or has ever maintained, sponsored or contributed to, to (i) any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”), whether or not excluded from coverage under specific Titles or Merger Subtitles any portion of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations (a "“Pension Plan"”). None of the Plans identified ; or (ii) a multiemployer plan (as defined in Part 2.16(aSection 3(37) of the Company Disclosure Schedule is subject to Title IV ERISA, whether or not excluded from coverage under any portion of ERISA or Section 412 of the CodeERISA).
(c) Except as set forth in Part 2.16(a) The Company and its Subsidiaries maintain, sponsor or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes contribute only to any: (i) those employee welfare benefit plan plans (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles any portion of ERISA) for the benefit of any employees Employees or former employees of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified Employees that are described in Part 2.16(a2.15(c) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA“Welfare Plans”).
(d) With respect to each Plan, the Company has delivered to Parent: Investor:
(i) an accurate and complete copy of such Plan (including all amendments thereto); ) or, if such Plan is not in writing, an accurate detailed written summary of the Plan;
(ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; ;
(iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, and all material written employee communications relating to such Plan;
(iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; ;
(v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and ;
(vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code); and
(vii) an accurate and complete copy of all material correspondence with any governmental entity with respect to such Plan.
(e) None Neither the Company nor any of the Acquired Corporations its Subsidiaries is or has required to be nor have any of them ever been required to be be, treated as a single employer with any other Person under Section 4001(b)(1400l(b)(l) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None Neither the Company nor any of the Acquired Corporations its Subsidiaries has ever been a member of an "“affiliated service group" ” within the meaning of Section 414(m) of the Code. None Neither the Company nor any of the Acquired Corporations its Subsidiaries has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "“withdrawal liability," ” as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None Neither the Company nor any of the Acquired Corporations its Subsidiaries has any plan or commitment to create any Welfare additional Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired CorporationsEmployee.
(g) Except as set forth in Part 2.16(g) To the knowledge of the Company Disclosure ScheduleCompany, no Plan is under investigation or audit by any governmental agency (including the Internal Revenue Service or Department of Labor).
(h) No Welfare Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations Employee after any such employee's Employee’s termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations Employees (or the employees' Employees’ beneficiaries)).
(hi) With respect to any Plan each of the Welfare Plans constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(ij) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(jk) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(kl) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither Neither the execution, delivery or performance of this AgreementAgreement and the Related Agreements, nor the consummation of the Merger or any of the other transactions contemplated by this AgreementAgreement and the Related Agreements, either alone or in connection with any other event, will result in any liability to the Company or any of its Subsidiaries or payment (including any bonus, golden parachute or severance payment) to any current or former employee Employee or director of the Company or any of the Acquired Corporations its Subsidiaries (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(lm) Part 2.16(l2.15(m) of the Company Disclosure Schedule contains a list of all salaried employees of each the Company or any of the Acquired Corporations its Subsidiaries as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amountsany other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. None Neither the Company nor any of the Acquired Corporations its Subsidiaries is a party to any collective bargaining contract or other Contract with a labor union involving any of its Employees. Except as set forth on Part 2.15(m) of the Company Disclosure Schedule, all of the Employees are “at will” employees. All bonuses paid prior to the Closing are properly excludible from each Employee’s basic remuneration (e.g., the regular rate of the employees of the Acquired Corporations are "at will" employeespay).
(mn) Part 2.16(m2.15(n) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave of absence and sets forth with respect to each such Employee on a leave of absence, whether the leave was approved by the Company and, if so, the basis of such leave leave, the date of commencement thereof and the anticipated scheduled termination date of return to full servicethereof.
(no) Each Plan complies Except as set forth in all material respects with all applicable Legal Requirements. Each Part 2.15(o) of the Acquired Corporations Company Disclosure Schedule, the Company and each of its Subsidiaries is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(op) Except as set forth in Part 2.16(o) of the The Company Disclosure Schedule, and each of the Acquired Corporations its Subsidiaries has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating no reason to believe that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the Company’s or its Subsidiaries’ labor relations of any of the Acquired Corporationsrelations, or (ii) any of the Company’s or its Subsidiaries’ employees of the Acquired Corporations who are corporate-management level or above or store-manager level or above intends to terminate his or her employment with the Acquired Corporation Company or any of its Subsidiaries, (iii) there is any pending or contemplated union organizing activity.
(q) The Company and its Subsidiaries have not incurred any liability under the Worker Adjustment Retraining and Notification Act (29 U.S.C.§§ 2101, et seq.) or any similar state law or statute relating to employment termination in connection with which a mass layoff, plant closing or similar event (such employee is employedas California Labor Code Section 1400, et seq.), in the six months preceding the Closing, and the transactions contemplated by this Agreement will not give rise to any such liability.
Appears in 1 contract
Samples: Securities Purchase Agreement (Gordon Biersch Brewery Restaurant Group, Inc.)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a) 2.16 of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "PlansPLANS") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired Corporations.
(b) Except as set forth in Part 2.16(a) of 2.16of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations (a "Pension PlanPENSION PLAN"). None of the Plans identified in Part 2.16(a) 2.16 of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) 2.16 of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees or former employees of any of the Acquired Corporations (a "Welfare PlanWELFARE PLAN"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) Section 2.16 of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered made available to Parent: (i) an accurate and complete a copy of such Plan (including all amendments thereto); (ii) an accurate and complete a copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; (iii) an accurate and complete a copy of the most recent summary plan description, together with each Summary of Material ModificationsModifications thereto, if required under ERISA, with respect to such Plan, ; (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete a copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all material Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete a copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.Internal
Appears in 1 contract
Employee and Labor Matters; Benefit Plans. (aA) Part 2.16(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "PlansPLANS") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations Company for the benefit of any current or former employee of any of the Acquired CorporationsCompany.
(bB) Except as set forth in Part 2.16(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintainsCompany does not maintain, sponsors sponsor or contributes contribute to, and none of the Acquired Corporations Company has not at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations Company (a "Pension PENSION Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(cC) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations maintainsCompany does not maintain, sponsors sponsor or contributes contribute to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees or former employees of any of the Acquired Corporations Company (a "Welfare PlanWELFARE PLAN"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part Section 2.16(a) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(dD) With respect to each Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(eE) None of the Acquired Corporations The Company is or not and never has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations The Company has ever never been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations The Company has ever never made a complete or partial withdrawal from a multi-employer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(fF) None of the Acquired Corporations The Company has any no plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law, including, without limitation, amendments to the Code and ERISA made by the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), the Uruguay Round Agreement Act ("GATT"), the Small Business Job Protection Act of 1996 ("SBJPA") and the Taxpayer Relief Act of 1997 (TRA '97")) in a manner that would affect any employee of any of the Acquired CorporationsCompany.
(gG) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no No Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations Company after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations Company (or the employees' beneficiaries)).
(hH) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations Company as of the date of this Agreement under any of the provisions of COBRA.
(iI) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(jJ) Each of the Plans intended to be qualified under Section 401(a) of the Code has either received a favorable determination from the Internal Revenue ServiceService as to its qualified status under the Code (or relies on a favorable opinion letter issued by the Internal Revenue Service with respect to a standardized form of prototype plan adopted by the Company) or the requisite period under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination with respect to the Plan has not expired, and the Company is not aware of any reason why any such determination letter should be revoked.
(kK) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither Neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations Company (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefitsbenefits (other than as required under Section 411(d)(3) of the Code in connection with the termination or partial termination of a Plan).
(lL) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations Company as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations The Company is not a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations Company are "at will" employees.
(mM) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(nN) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations The Company is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(oO) Except as set forth in Part 2.16(o) of the The Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has Company does not have any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired CorporationsCompany, or (ii) any of the employees of the Acquired Corporations Company intends to terminate his or her employment with the Acquired Corporation with which such employee is employedCompany.
Appears in 1 contract
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a) of the Company Disclosure Schedule identifies each salary, bonus, vacation, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, death and disability benefits, hospitalization, medical, life or other insurance, flexible benefits, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement and each other employee benefit plan or arrangement (collectively, the "Employee Plans") ), including the Transition Plan, sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired Corporations. Part 2.16(a) also identifies each Legal Requirement pursuant to which any of the Acquired Corporations is required to establish any reserve or make any contribution for the benefit of any current or former employee located in any foreign jurisdiction.
(b) Except as set forth in Part 2.16(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any similar pension benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles 19 25 or Merger Subtitles of ERISA) ERISA for the benefit of employees or former employees of any of the Acquired Corporations (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to any: (i) any employee welfare benefit plan (as defined in Section 3(1) of ERISAERISA or any similar welfare benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ), for the benefit of any employees current or former employees or directors of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Employee Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Employee Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Employee Plan for the last two three years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, with respect to such Employee Plan, (iv) if such Employee Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Employee Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Employee Plan (if such Employee Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, except for the Acquired Corporations. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Employee Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multiemployer plan (within the meaning of Section 3(37) of ERISA). None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any current or former employee or director of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no No Employee Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee or director of any of the Acquired Corporations after any such employee's termination of service of such employee or director (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Employee Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Employee Plans has been operated and administered in all material respects in accordance with its terms and with applicable Legal Requirements, including but not limited to without limitation ERISA and the Code, except to the extent that any violation of the applicable Legal Requirements has not had and would not be reasonably likely to have a Material Adverse Effect on the Acquired Corporations. The Acquired Corporations have performed in all material respects all of their respective obligations under the Employee Plans.
(j) Each of the Employee Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service, and to the Company is not aware knowledge of any reason why any the Company, nothing has occurred that would adversely affect such determination letter should be revokeddetermination.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither Neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute parachute, severance or severance payment) other payment or obligation to any current or former employee or director of any of the Acquired Corporations (whether or not under any Employee Plan), or materially increase the benefits payable or provided under any Employee Plan, or result in any acceleration of the time of payment or vesting of any such benefits. Without limiting the generality of the foregoing (and except as set forth in Part 2.16(k) of the Company Disclosure Schedule), the consummation of the Merger will not result in the acceleration of vesting of any unvested Company Options.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amountsany other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees, and except as set forth in Part 2.16(l) of the Company Disclosure Schedule, may be terminated without any of the Acquired Corporations being required to make any payment to any such employee.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee employee of any of the Acquired Corporations who is not fully available to perform work because of disability or other leave and sets forth the basis of such disability or leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o2.16(n) of the Company Disclosure Schedule, Schedule identifies each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger employee or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations former employee of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.who has been terminated or
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Ashford Com Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.8(a)(i) and 2.13(a) of the Company Disclosure Schedule identifies identify each written or unwritten salary, employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program program, arrangement or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations Company for the benefit of any current or former employee or director (or any beneficiary of the foregoing) of any of the Acquired CorporationsCompany (each, an "Employee"), or pursuant to which any Acquired Company may have liability (contingent or otherwise).
(b) Except as set forth in Part 2.16(a2.13(b) of the Company Disclosure Schedule, none of the Acquired Corporations Companies maintains, sponsors or contributes to, and none of the Acquired Corporations or has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none Each of the Acquired Corporations Companies maintains, sponsors or contributes to any: (ior has liability (contingent or otherwise) with respect to) only those employee welfare benefit plan plans (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees or former employees of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified which are set forth in Part 2.16(a2.13(c) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA"Welfare Plans").
(d) With respect to each Plan, the Company has delivered to Parent: :
(i) an accurate and complete copy of such Plan (including all amendments thereto); ;
(ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two five years; ;
(iii) an accurate and complete copy of the most recent prospectus and summary plan description, together with each subsequent Summary of Material Modifications, if required under ERISA, with respect to such Plan, and all material employee communications relating to such Plan;
(iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; ;
(v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, trust agreements, subscription and participation agreements and recordkeeping record keeping agreements; and and
(vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations Companies is or required to be, and, to the Knowledge of the Company, has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations Companies has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations Companies has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None Except as listed in Part 2.13(f) of the Company Disclosure Schedule, none of the Acquired Corporations Companies has any plan or commitment to create any Welfare Plan additional employee benefit plan or any additional Pension Planprogram, or to modify or change any existing Pension Welfare Plan or other Plan (other than to comply with applicable law) in a manner that would affect any employee the rights or obligations of any of the current or former Employee or any Acquired CorporationsCompany thereunder.
(g) Except as set forth in Part 2.16(g2.13(g) of the Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current Employee (or former employee of any of the Acquired Corporations his or her dependents) after any such employeeEmployee's termination of service (other than (i) benefit coverage mandated by applicable lawstatute, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet or the NCA#1 Unaudited Interim Balance Sheet, and (iii) benefits the full cost of which are is borne by current or former employees of any of the Acquired Corporations such Employee (or the employees' beneficiarieshis or her dependents)).
(h) With respect to any Plan each of the Welfare Plans constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including including, but not limited to to, ERISA and the Code. There are no actions, proceedings, arbitrations, suits, claims, audits or investigations pending, or to the knowledge of any Acquired Company threatened or anticipated (other than routine claims for benefits) in connection with a Plan and pursuant to which any Plan or any Acquired Company could incur a material liability.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, is so qualified and the Company is not aware of any reason why any such determination letter qualified status should be revoked.
(k) Except as set forth in Part 2.16(k2.13(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this AgreementAgreement (whether alone or upon the occurrence of any other event), will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee Employee or director of any of the Acquired Corporations Company (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits, or result in the material loss of deduction by reason of Section 280G of the Internal Revenue Code.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations Companies is a party to any collective bargaining contract or other Contract with a labor union involving any of its employeesEmployees. All Except as listed in Part 2.13(l) of the employees Company Disclosure Schedule, all of the Acquired Corporations Companies' employees are "at will" employees. No Acquired Company contributes to or is required to contribute to, or has ever contributed to or been required to contribute to, any "multi-employer plan" (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA).
(m) Part 2.16(m) Except where the failure to comply has not had and will not have a Material Adverse Effect on the Company, to the Knowledge of the Company Disclosure Schedule identifies Company, each Employee who is not fully available to perform work because of disability or other leave the Acquired Companies is, and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies has at all times since November 2, 1998 been, in all material respects compliance with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) ; provided, however, that with respect to any Acquired Company that was acquired by the Company since November 2, 1998, with respect to the operations of such company prior to such acquisition, such representation shall be made only to the Knowledge of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employedCompany.
Appears in 1 contract
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.15(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired CorporationsCorporations ("Employee"), except for (1) Plans which would not require any of the Acquired Corporations to make payments or provide benefits having a value in excess of $25,000 in the aggregate and (2) except for the Company's 2000 Merit Compensation Plan and 2000 Incentive Compensation Plant.
(b) Except as set forth in Part 2.16(a2.15(b) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and and, to the Knowledge of the Company, none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees Employees or former employees of any of the Acquired Corporations Employees (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none Each of the Acquired Corporations maintains, sponsors or contributes only to any: (i) those employee welfare benefit plan plans (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees Employees or former employees of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified Employees which are described in Part 2.16(a2.15(c) of the Company Disclosure Schedule (the "Welfare Plans"), none of which is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered or made available to Parent: :
(i) an accurate and complete copy of such Plan (including all amendments thereto); ;
(ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; ;
(iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, and all material employee communications relating to such Plan;
(iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; ;
(v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and and
(vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or are required to be, and, to the Knowledge of the Company, has ever been required to be be, treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None To the Knowledge of the Company, none of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any additional Welfare Plan or any additional Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired CorporationsEmployee.
(g) Except as set forth in Part 2.16(g2.15(g) of the Company Disclosure Schedule, no Welfare Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations Employee after any such employeeEmployee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations Employees (or the employeesEmployees' beneficiaries)).
(h) With respect to any Plan each of the Welfare Plans constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(k) Except as set forth in Part 2.16(k2.15(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.former
Appears in 1 contract
Samples: Merger Agreement (Pharmaceutical Product Development Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.17(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectivelymaintained, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee employee, director or consultant of any of the Acquired Corporations. (All plans, programs and agreements of the type referred to in the prior sentence are referred to in this Agreement as the "Plans.")
(b) Except as set forth in Part 2.16(a2.17(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) or any similar pension benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ), for the benefit of employees any current or former employees employee or director of any of the Acquired Corporations (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c2.17(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISA) or any similar welfare benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) , for the benefit of any employees current or former employees employee or director of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for each of the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to any subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any current or former employee or director of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no No Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee or director of any of the Acquired Corporations after any such employee's termination of service of such employee or director (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees or directors of any of the Acquired Corporations (or the employees' their beneficiaries)).
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA ERISA, the Code and the Codeapplicable foreign Legal Requirements.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should could be revoked.
(k) Except as set forth in Part 2.16(k2.17(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute parachute, severance or severance payment) other payment or obligation to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable or provided under any Plan, or result in any acceleration of the time of payment payment, provision or vesting of any such benefits.
(l) Part 2.16(l2.17(l) of the Company Disclosure Schedule contains a list of all salaried employees identifies each employee of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salariesthe current salary and any other compensation payable to such employee (including compensation payable pursuant to bonus, their targeted annual bonus amountsdeferred compensation or commission arrangements), their dates such employee's employer, date of employment hire and their positionsposition and the principal office of such employee. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All Except as set forth in Schedule 2.17(l), all of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m2.17(m) of the Company Disclosure Schedule identifies each Employee employee of any of the Acquired Corporations who is not fully available to perform work because of disability or other leave and sets forth the basis of such disability or leave and the anticipated date of such employee's return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each Each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations Company has any no knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of any of the Acquired Corporations intends to terminate his or her employment with the such Acquired Corporation with which such employee is employedCorporation.
Appears in 1 contract
Samples: Merger Agreement (Transition Analysis Component Technology Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.15(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired CorporationsCorporations ("Employee"), except for (1) Plans which would not require any of the Acquired Corporations to make payments or provide benefits having a value in excess of $25,000 in the aggregate and (2) except for the Company's 2000 Merit Compensation Plan and 2000 Incentive Compensation Plan.
(b) Except as set forth in Part 2.16(a2.15(b) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and and, to the Knowledge of the Company, none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees Employees or former employees of any of the Acquired Corporations Employees (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none Each of the Acquired Corporations maintains, sponsors or contributes only to any: (i) those employee welfare benefit plan plans (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees Employees or former employees of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified Employees which are described in Part 2.16(a2.15(c) of the Company Disclosure Schedule (the "Welfare Plans"), none of which is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered or made available to Parent: :
(i) an accurate and complete copy of such Plan (including all amendments thereto); ;
(ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; ;
(iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, and all material employee communications relating to such Plan;
(iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; ;
(v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.stop-
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Dna Sciences Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations Company for the benefit of any current or former employee of any of or director of, or current or former consultant or contractor to, the Acquired CorporationsCompany or its subsidiaries.
(b) Except as set forth in Part 2.16(a2.16(b) of the Company Disclosure Schedule, none the Company does not, and nor do any of the Acquired Corporations maintainsits subsidiaries, sponsors maintain, sponsor or contributes contribute to, and none the Company has not, and nor have any of the Acquired Corporations has its Subsidiaries, at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations Company and its Subsidiaries (a "Pension Plan"). None of the Plans identified in Part 2.16(a2.16(b) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none the Company does not, and nor do any of the Acquired Corporations maintainsits Subsidiaries, sponsors maintain, sponsor or contributes contribute to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees employee or former employees of any of employee or director of, or current or former consultant or contractor to, the Acquired Corporations Company and its Subsidiaries (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(aSection 2.16(c) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered to Parent, on behalf of itself and each of its Subsidiaries: (i) an accurate and complete copy of such Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code)) and any governmental advisory opinions, rulings, compliance statements, closing agreements, or similar materials specific to such Plan.
(e) None The Company is not and never, and none of the Acquired Corporations its Subsidiaries is or ever, has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None The Company has never and none of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations its Subsidiaries has ever made a complete or partial withdrawal from a multi-employer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None Neither the Company nor any of the Acquired Corporations its Subsidiaries has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law, including, without limitation, amendments to the Code and ERISA made by the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), the Uruguay Round Agreement Act ("GATT"), the Small Business Job Protection Act of 1996 ("SBJPA") and the Taxpayer Relief Act of 1997 ("TRA '97")) in a manner that would affect any current or former employee or director of, or current or former consultant or contractor to, of the Company or any of its Subsidiaries. The Company has not and none of its Subsidiaries has agreed in writing to maintain any Plan for any period of time and each such Plan is terminable at the Acquired Corporationssole discretion of the sponsor thereof, subject only to such constraints as may imposed by applicable law.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no No Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of or director of, or current or former consultant or contractor to, the Company or any of the Acquired Corporations Subsidiary after any such employeeindividual's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any such individuals of the Acquired Corporations Company or any Subsidiary (or the employees' their beneficiaries)). Notwithstanding the foregoing, certain individual employees have such benefits under their employment agreements as disclosed in Part 2.10(a)(ii) of the Company Disclosure Schedule.
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations Company or any of its Subsidiaries as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code. There is no pending or, to the Knowledge of the Company, threatened legal action, proceeding or investigation, other than routine claims for benefits, concerning any Plan or to the best knowledge of the Company any fiduciary or service provider thereof with respect to the Plans and, to the Knowledge of the Company, there is no basis for any such legal action or proceeding. No Plan nor any party in interest with respect thereof has engaged in a prohibited transaction which could subject the Company or any of its Subsidiaries directly or indirectly to liability under Section 409 or 502(i) of ERISA or Section 4975 of the Code. With respect to each Plan for which a separate fund of assets is or is required to be maintained, full payment has been made of all amounts required of the Company, under the terms of each such Plan or applicable law, as applied through the Closing Date.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has either received a favorable determination from the Internal Revenue ServiceService as to its qualified status under the Code (or relies on a favorable opinion letter issued by the Internal Revenue Service with respect to a standardized form of prototype plan adopted by the Company or its Subsidiaries, as the case may be) or the requisite period under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination with respect to the Plan has not expired, and the Company is not aware of any reason why any such determination letter should be revokedrevoked or which requires or could require action under the compliance resolution programs of the Internal Revenue Service to preserve such qualification.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, alone or in combination with any other event or action, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of of, or current or former consultant or contractor to, the Company or any of the Acquired Corporations its Subsidiaries (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefitsbenefits (other than as required under Section 411(d)(3) of the Code in connection with the termination or partial termination of a Plan).
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations Company and its Subsidiaries as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None Neither the Company nor any of the Acquired Corporations its Subsidiaries is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All Except as set forth in Part 2.16(l) of the Company Disclosure Schedule, all of the employees of the Acquired Corporations Company and its Subsidiaries are "at will" employeesemployees and each current or former contractor or consultant to the Company and its Subsidiaries is and has at all times been properly characterized as such.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each The Company and each of the Acquired Corporations its Subsidiaries is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the The Company Disclosure Schedule, and each of the Acquired Corporations its Subsidiaries has good labor relations, and none of the Acquired Corporations has Company does not have any knowledge of any facts indicating Knowledge that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of the Company or any of the Acquired Corporationsits Subsidiaries, or (ii) any of the employees of the Acquired Corporations Company or any of its Subsidiaries intends to terminate his or her employment with the Acquired Corporation with which such employee is employedCompany or its Subsidiary, as the case may be.
Appears in 1 contract
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.15(a) of the Company Disclosure Schedule identifies each salary, bonus, vacation, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, death and disability benefits, hospitalization, medical, life or other insurance, flexible benefits, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement and each other employee benefit plan or arrangement (collectively, the "Employee Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired Corporations. Part 2.15(a) of the Company Disclosure Schedule also identifies each Legal Requirement pursuant to which any of the Acquired Corporations is required to establish any reserve or make any contribution for the benefit of any current or former employee located in any jurisdiction outside of the United States.
(b) Except as set forth in Part 2.16(a2.15(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, Schedule includes any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any similar pension benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ERISA for the benefit of employees or former employees of any of the Acquired Corporations (a "Pension Plan"). None of the Plans identified in .
(c) Part 2.16(a2.15(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to any: (i) includes any employee welfare benefit plan (as defined in Section 3(1) of ERISAERISA or any similar welfare benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ), for the benefit of any employees current or former employees or directors of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Employee Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Employee Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Employee Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, with respect to such Employee Plan, (iv) if such Employee Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all material Contracts relating to such Employee Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping record-keeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Employee Plan (if such Employee Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, except for the Acquired Corporations. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.of
Appears in 1 contract
Samples: Merger Agreement (Quokka Sports Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.17(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired Corporations.
(b) Except as set forth in Part 2.16(a2.17(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and to the knowledge of the Company, none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), or any pension benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) , for the benefit of employees or former employees of any of the Acquired Corporations (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c2.17(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISA) or any welfare benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ERISA for the benefit of any employees current or former employees or directors of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered to Parent as requested by Parent: (i) if such Plan is set forth in writing, an accurate and complete copy of such Plan (including all amendments thereto); (ii) if such Plan is not set forth in writing, an accurate and complete description of such Plan (including all amendments thereto); (iii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; (iiiiv) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, (ivv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (vvi) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vivii) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None To the knowledge of the Company, none of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any current or former employee or director of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no No Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee or director of any of the Acquired Corporations after any such employee's termination of service of such employee or director (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees or directors of any of the Acquired Corporations (or the employees' their beneficiaries)).
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited ERISA, the Code and applicable foreign Legal Requirements. Except for restrictions imposed by applicable Legal Requirements, to ERISA and the Codeknowledge of the Company, there are no restrictions on the rights of the Company or any of the other Acquired Corporations to amend or terminate any Plan without incurring any liability thereunder.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should could be revoked.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither Neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute parachute, severance or severance payment) other payment or obligation to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable or provided under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits. Without limiting the generality of the foregoing (and except as set forth in Part 2.17(k) of the Company Disclosure Schedule), the consummation of the Merger will not result in the acceleration of vesting of any unvested Company Options.
(l) Part 2.16(l2.17(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salariessalaries and certain bonus and commission arrangements, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(on) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each Each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of any of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed. For purposes of all applicable Legal Requirements, each Acquired Corporation has properly classified each person providing services to such Acquired Corporation as either an employee or an independent contractor.
Appears in 1 contract
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.14(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired CorporationsCorporations (other than those plans, programs and agreements disclosed in the Company SEC Documents and other than the Company's 401(k) profit sharing plan).
(b) Except as set forth in Part 2.16(a2.14(a) of the Company Disclosure ScheduleSchedule (and except for the Company's 401(k) profit sharing plan), none of the Acquired Corporations maintains, sponsors or contributes to, and none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the CodeCorporations.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees or former employees of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(kd) Except as set forth disclosed in Part 2.16(k) of the Company Disclosure ScheduleSEC Documents, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(le) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all applicable Legal Requirements and Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.
Appears in 1 contract
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a2.17(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectivelymaintained, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations Corporation for the benefit of any current or former employee of the Acquired Corporation. (All plans, programs and agreements of the type referred to in the prior sentence are referred to in this Agreement as the “Plans.”) There is no Legal Requirement pursuant to which the Acquired Corporation is required to establish any reserve or make any contribution for the benefit of any current or former employee located in any foreign jurisdiction. Each employee of the Acquired CorporationsCorporation has been properly characterized as “exempt” or “non-exempt” for purposes of all applicable Legal Requirements. The Acquired Corporation has no more than two current employees characterized as “non-exempt.”
(b) Except as set forth in Part 2.16(a2.17(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintainsCorporation does not maintain, sponsors sponsor or contributes contribute to, and none of the Acquired Corporations Corporation has not at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of ERISA) or any similar pension benefit plan under the Employee Retirement Income Security Act laws of 1974, as amended ("ERISA")any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ), for the benefit of employees any current or former employees of any employee or director of the Acquired Corporations Corporation (a "“Pension Plan"”). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c2.17(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintainsCorporation does not maintain, sponsors sponsor or contributes contribute to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISA) or any similar welfare benefit plan under the laws of any foreign jurisdiction, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) , for the benefit of any employees current or former employees of any employee or director of the Acquired Corporations Corporation (a "“Welfare Plan"”), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for each of the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the The Acquired Corporations Corporation neither is or nor has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the The Acquired Corporations Corporation has ever never been a member of an "“affiliated service group" ” within the meaning of Section 414(m) of the Code. None of the The Acquired Corporations Corporation has ever never made a complete or partial withdrawal from a multi-employer multiemployer plan, as such term is defined in Section 3(37) of ERISA, resulting in "“withdrawal liability," ” as such term is defined in Section 4201 of ERISA (without regard to any subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the The Acquired Corporations Corporation has any no plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with applicable law) in a manner that would affect any current or former employee of any or director of the Acquired CorporationsCorporation.
(g) Except as set forth in Part 2.16(g2.17(g) of the Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any or director of the Acquired Corporations Corporation after any such employee's termination of service of such employee or director (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Unaudited Interim Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any or directors of the Acquired Corporations Corporation (or the employees' their beneficiaries)).
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("“COBRA"”) have been complied with in all material respects. Part 2.16(h2.17(h) of the Company Disclosure Schedule describes lists all obligations of persons with respect to whom the Acquired Corporations as of the date of this Agreement Corporation has any obligation under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA ERISA, the Code and the Codeapplicable foreign Legal Requirements.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should could be revoked.
(k) Except as set forth in Section 1.6 and Part 2.16(k2.3(c), Part 2.16(e) and Part 2.17(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute parachute, severance or severance payment) other payment or obligation to any current or former employee or director of any of the Acquired Corporations Corporation (whether or not under any Plan), or materially increase the benefits payable or provided under any Plan, or result in any acceleration of the time of payment payment, provision or vesting of any such benefits.
(l) Part 2.16(l2.17(l) of the Company Disclosure Schedule contains a list of all salaried employees of identifies each current employee of the Acquired Corporations Corporation as of the date of this Agreement, and correctly reflects, in all material respects, their base salariesthe current salary and any other compensation payable to such employee (including compensation payable pursuant to bonus, their targeted annual bonus amountsdeferred compensation or commission arrangements), their dates such employee’s employer, date of employment hire and their positionsposition and the principal office of such employee. None of the The Acquired Corporations Corporation is not a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations Corporation are "“at will" ” employees.
(m) Part 2.16(m2.17(m) of the Company Disclosure Schedule identifies each Employee current employee of the Acquired Corporation who is not fully available to perform work because of disability or other leave and sets forth the basis of such disability or leave and the anticipated date of such employee’s return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the The Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations Corporation has good labor relations, and none of the Acquired Corporations Company has any no knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired CorporationsCorporation, or (ii) any of the employees of the Acquired Corporations Corporation intends to terminate his or her employment with the Acquired Corporation with which such employee is employedCorporation.
Appears in 1 contract
Employee and Labor Matters; Benefit Plans. (aA) Part 2.16(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "PlansPLANS") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired Corporations.
(bB) Except as set forth in Part 2.16(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees or former employees of any of the Acquired Corporations (a "Pension PlanPENSION PLAN"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(cC) Except as set forth in Part 2.16(a) or Part 2.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees or former employees of any of the Acquired Corporations (a "Welfare PlanWELFARE PLAN"), or (ii) self-funded medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer plan (within the meaning of Section 3(37) of ERISA).
(dD) With respect to each Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(eE) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(fF) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired Corporations.. 16
(gG) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(hH) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(iI) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(jJ) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(kK) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(lL) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
. (mM) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(nN) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(oO) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.
Appears in 1 contract
Employee and Labor Matters; Benefit Plans. (aA) Part 2.16(a2.17(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectivelymaterial agreement, the "Plans") sponsoredwhether or not in writing, maintained, sponsored, contributed to or required to be contributed to by any of the Acquired Corporations for the benefit of any current or former employee of any of the Acquired CorporationsCorporations or pursuant to which any of Parent, Merger Sub or any of the Acquired Corporations could incur liability. (All plans, programs and material agreements of the type referred to in the prior sentence are referred to in this Agreement as the "Plans.")
(bB) Except as set forth in Part 2.16(a2.17(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to, and none of the Acquired Corporations has at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) ), for the benefit of employees any current or former employees employee or director of any of the Acquired Corporations (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(cC) Except as set forth in Part 2.16(a) or Part 2.16(c2.17(a) of the Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes to any: (i) employee welfare benefit plan (as defined in Section 3(1) of ERISA), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) , for the benefit of any employees current or former employees employee or director of any of the Acquired Corporations (a "Welfare Plan"), or (ii) self-funded funded
21. medical, dental or other similar Plan. None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Plan (including all amendments thereto); (ii) an accurate and complete copy of the annual report, if required under ERISA, with respect to such Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g) of the Company Disclosure Schedule, no Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations after any such employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations (or the employees' beneficiaries)).
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(k) Except as set forth in Part 2.16(k) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee or director of any of the Acquired Corporations (whether or not under any Plan), or materially increase the benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(l) Part 2.16(l) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amounts, their dates of employment and their positions. None of the Acquired Corporations is a party to any collective bargaining contract or other Contract with a labor union involving any of its employees. All of the employees of the Acquired Corporations are "at will" employees.
(m) Part 2.16(m) of the Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations has any knowledge of any facts indicating that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, or (ii) any of the employees of the Acquired Corporations intends to terminate his or her employment with the Acquired Corporation with which such employee is employed.
Appears in 1 contract
Samples: Merger Agreement (Agritope Inc)
Employee and Labor Matters; Benefit Plans. (a) Part 2.16(a) of the Company Disclosure Schedule identifies each salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement (collectively, the "Plans") sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Corporations Company for the benefit of any current or former employee of any of the Acquired CorporationsCompany ("Employee").
(b) Except as set forth in Part 2.16(a) The Company does not maintain, sponsor or contribute to, and, to the Knowledge of the Company Disclosure ScheduleCompany, none of the Acquired Corporations maintains, sponsors or contributes to, and none of the Acquired Corporations has not at any time in the past maintained, sponsored or contributed to, any employee pension benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of employees Employees or former employees of any of the Acquired Corporations Employees (a "Pension Plan"). None of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule is subject to Title IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(a) or Part 2.16(c) of the The Company Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or contributes only to any: (i) those employee welfare benefit plan plans (as defined in Section 3(1) of ERISA, whether or not excluded from coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of any employees Employees or former employees of any Employees that are described in Part 2.16(c) of the Acquired Corporations Disclosure Schedule (a the "Welfare PlanPlans"), or (ii) self-funded medical, dental or other similar Plan. None none of the Plans identified in Part 2.16(a) of the Company Disclosure Schedule which is a multi-employer multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered to Parent: (i) an accurate and complete copy of such Plan (including all amendments thereto); ) and (ii) an accurate and complete copy of the all annual reportreports, if required under ERISA, with respect to such Plan for the last two years; (iii) an accurate and complete copy of the most recent summary plan descriptiondescriptions, together with each Summary of Material Modificationsmaterial employee communications, if required under ERISAtrust or other funding agreements, financial statements and Contract relating to or with respect to such Plan, (iv) if such Plan is funded through a trust or any third party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; (v) accurate and complete copies of all Contracts relating to such Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and participation agreements and recordkeeping agreements; and (vi) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Plan (if such Plan is intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Corporations is or has ever been required to be treated as a single employer with any other Person under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the Acquired Corporations has ever been a member of an "affiliated service group" within the meaning of Section 414(m) of the Code. None of the Acquired Corporations has ever made a complete or partial withdrawal from a multi-employer plan, as such term is defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Corporations has any plan or commitment to create any Welfare Plan or any additional Pension Plan, or to modify or change any existing Pension Plan (other than to comply with applicable law) in a manner that would affect any employee of any of the Acquired Corporations.
(g) Except as set forth in Part 2.16(g2.16(e) of the Company Disclosure Schedule, all Pension Plans comply in form and in operation in all material respects with all applicable requirements of sections 401(a) and 501(a) of the Code, and to the Knowledge of the Company, no event has occurred that will or could give rise to disqualification of any such plan under such sections or to a tax under section 511 of the Code.
(f) Except as would not have a Material Adverse Effect on the Company, there have been no "prohibited transactions" (as described in section 406 of the Employee Retirement Income Security Act of 1974, as amended, or section 4975 of the Code) with respect to any Plan.
(g) No Welfare Plan provides death, medical or health benefits (whether or not insured) with respect to any current or former employee of any of the Acquired Corporations Employee after any such employeeEmployee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, law and (ii) deferred compensation benefits accrued as liabilities on the Company Balance Sheet, and (iii) benefits the full cost of which are borne by current or former employees of any of the Acquired Corporations Employees (or the employeesEmployees' beneficiaries)).
(h) With respect to any Plan constituting a group health plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section 4980B of the Code ("COBRA") have been complied with Except as set forth in all material respects. Part 2.16(h) of the Company Disclosure Schedule describes all obligations of the Acquired Corporations as of the date of this Agreement under any of the provisions of COBRA.
(i) Each Schedule, each of the Plans has been operated and administered in all material respects in accordance with applicable Legal Requirements, including but not limited to ERISA and the Code.
(j) Each of the Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked.
(ki) Except as set forth in Part 2.16(k2.16(i) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will result in any payment (including any bonus, golden parachute or severance payment) to any current or former employee Employee or director of any of the Acquired Corporations Company (whether or not under any Plan), or materially increase the 20. benefits payable under any Plan, or result in any acceleration of the time of payment or vesting of any such benefits.
(lj) There has been no act or omission that would impair the right or ability of the Company to unilaterally amend or terminate any plan, agreement or arrangement.
(k) Part 2.16(l2.16(k) of the Company Disclosure Schedule contains a list of all salaried employees of each of the Acquired Corporations Company as of the date of this Agreement, and correctly reflects, in all material respects, their base salaries, their targeted annual bonus amountsany other compensation payable to them (including compensation payable pursuant to bonus, deferred compensation or commission arrangements), their dates of employment and their positions. None of the Acquired Corporations The Company is not a party to any collective bargaining contract or other Contract with a labor union involving any of its employeesEmployees. All of the employees of the Acquired Corporations Company are "at will" employees.
(ml) Part 2.16(m) of the The Company Disclosure Schedule identifies each Employee who is not fully available to perform work because of disability or other leave and sets forth the basis of such leave and the anticipated date of return to full service.
(n) Each Plan complies in all material respects with all applicable Legal Requirements. Each of the Acquired Corporations is in compliance in all material respects with all Contracts relating to employment, employment practices, wages, bonuses and terms and conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, each of the Acquired Corporations has good labor relations, and none of the Acquired Corporations Company has any knowledge of any facts indicating no reason to believe that (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will have a material adverse effect on the labor relations of any of the Acquired Corporations, Company or (ii) any of the Key Employees or more than five (5) other employees of the Acquired Corporations Company intends to terminate his or her employment with the Acquired Corporation Company.
(m) The Company does not have any plan or commitment to create any additional Welfare Plan or any Pension Plan, or to modify or change any existing Welfare Plan or Pension Plan (other than to comply with which such employee is employedapplicable law) in a manner that would affect any Employee.
Appears in 1 contract
Samples: Merger Agreement (Internap Network Services Corp/Wa)
