Employee Benefit Plans; Employment Agreements (a) Section 2.11(a) of the Parent Disclosure Schedule lists all employee pension plans (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), all employee welfare plans (as defined in Section 3(1) of ERISA), and all other bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and other similar fringe or employee benefit plans, programs or arrangements, written or otherwise, as amended, modified or supplemented, for the benefit of, or relating to, any current employee, officer or consultant (or any of their beneficiaries) of Parent or any other entity (whether or not incorporated) which is a member of a controlled group including Parent or which is under common control with Parent (an "ERISA Affiliate") within the meaning of Section 414 of the Code or Section 4001 of ERISA, or any subsidiary of Parent, as well as each plan with respect to which Parent or an ERISA Affiliate could incur liability under Section 4069 (if such plan has been or were terminated) or Section 4212(c) of ERISA or Section 412 of the Code (together, the "Employee Plans"). There have been made available or will be made available as promptly as practicable, but in any event no later than 20 business days after the date hereof to the Company copies of (i) each such written Employee Plan and all related trust agreements, insurance and other contracts (including policies), the most recent summary plan descriptions, summaries of material modifications and communications distributed to plan participants since the date of the most recent summary plan descriptions, (ii) the three most recent annual reports on Form 5500 series, with accompanying schedules and attachments, filed with respect to each Employee Plan required to make such a filing, (iii) the most recent actuarial valuation for each Employee Plan subject to Title IV of ERISA, (iv) the latest reports which have been filed with the Department of Labor with respect to each Employee Plan required to make such filing and (v) favorable determination letters issued for each Employee Plan and related trust that are intended to satisfy the qualification requirements of Section 401(a) and Section 501(a) of the Code (or, if pending, a copy of the application for such determination). For purposes of this Section 2.11, the term "material," when used with respect to (i) any Employee Plan, shall mean that Parent or an ERISA Affiliate has incurred or may incur obligations in an amount exceeding $5,000,000 with respect to such Employee Plan, and (ii) any liability, obligation, breach or non-compliance, shall mean that the Parent or an ERISA Affiliate has incurred or may incur obligations in an amount exceeding $1,000,000, with respect to any one such or series of related liabilities, obligations, breaches, defaults, violations or instances of non-compliance.
(b) Except as set forth in Section 2.11(b) of the Parent Disclosure Schedule, (i) none of the Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person, and none of the Employee Plans is a "multiemployer plan" as such term is defined in Section 3(37) of ERISA; (ii) no party in interest or disqualified person (as defined in Section 3(14) of ERISA and Section 4975 of the Code) has at any time engaged in a transaction with respect to any Employee Plan which could subject Parent or any ERISA Affiliate, directly or indirectly, to a tax, penalty or other material liability for prohibited transactions under ERISA or Section 4975 of the Code; (iii) no fiduciary of any Employee Plan has breached any of the responsibilities or obligations imposed upon fiduciaries under Title I of ERISA, which breach could result in any material liability to Parent or any ERISA Affiliate; (iv) all Employee Plans have been established and maintained substantially in accordance with their terms and have operated in compliance in all material respects with the requirements prescribed by any and all statutes (including ERISA and the Code), orders, or governmental rules and regulations currently in effect with respect thereto (including all applicable requirements for notification to participants or the Department of Labor, Internal Revenue Service (the "IRS") or Secretary of the Treasury), and may by their terms be amended and/or terminated at any time subject to applicable law, and Parent and each of its subsidiaries have performed all material obligations required to be performed by them under, are not in any material respect in default under or violation of, and have no knowledge of any default or violation by any other party to, any of the Employee Plans; (v) each Employee Plan intended to qualify under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code is the subject of a favorable determination letter from the IRS, and nothing has occurred which may reasonably be expected to impair such determination; (vi) all contributions required to be made with respect to any Employee Plan pursuant to Section 412 of the Code, or the terms of the Employee Plan or any collective bargaining agreement, have been made on or before their due dates; (vii) with respect to each Employee Plan, no "reportable event" within the meaning of Section 4043 of ERISA (excluding any such event for which the 30 day notice requirement has been waived under the regulations to Section 4043 of ERISA) has occurred for which there is any material outstanding liability to the Company nor any ERISA Affiliate; and (viii) neither Parent nor any ERISA Affiliate has incurred or reasonably expects to incur any liability under Title IV of ERISA (other than liability for premium payments to the Pension Benefit Guaranty Corporation (the PBGC") arising in the ordinary course).
(c) Section 2.11(c) of the Parent Disclosure Schedule sets forth a true and complete list of options or other rights, direct or indirect to purchase Parent Common Stock held by any current or former employee, officer or director of Parent or any of its subsidiaries as of the date hereof, together with the number of shares of Parent Common Stock subject to such options, and the exercise price of such options or rights (to the extent determined as of the date hereof), and no such option is intended to qualify as an incentive stock option within the meaning of Section 422(b) of the Code (an "ISO"), provided that no later than 20 business days after the date hereof, Parent will provide the Company with a list of current or former employees, officers and directors of Parent or any of its subsidiaries who hold any options or rights listed on Section 2.11(c) of the Parent Disclosure Schedule and the expiration dates of such options.
(d) Section 2.11(d) of the Parent Disclosure Schedule sets forth a true and complete list of (i) all employment agreements with executive officers of Parent or any of its subsidiaries; (ii) all agreements with consultants who are individuals obligating Parent or any of its subsidiaries to make annual cash payments in an amount exceeding $500,000; (iii) all current executive officers of Parent or any of its subsidiaries who have executed a non-competition agreement with Parent or any of its subsidiaries; (iv) all severance agreements, programs and policies of Parent or any of its subsidiaries with or relating to its employees, in each case with outstanding commitments with respect to any one individual exceeding $250,000 per year or providing for payments over a period in excess of two years, excluding programs and policies required to be maintained by law; and (v) all Employee Plans which contain change in control provisions. Other than as disclosed in Parent's Statement on Schedule 14D-9 filed prior to the date hereof with the SEC in respect of an exchange offer of Western Resources, Inc. (the "Schedule 14D-9"), there have been no material changes to the compensation of Parent's executive officers since September 30, 1996. All related payroll expenses and any accelerated pension benefits of Parent and any of its subsidiaries under severance agreements with former employees, directors and officers of Parent or any of its subsidiaries have been fully accrued in the 1996 Financial Statements.
(e) Except as set forth in Section 2.11(e) of the Parent Disclosure Schedule, no employee of Parent or any of its subsidiaries has participated in any employee pension benefit plans (as defined in Section 3(2) of ERISA) maintained by or on behalf of Parent. The PBGC has not instituted proceedings to terminate any defined benefit plan listed in Section 2.11(e) of the Parent Disclosure Schedule (each, a "Defined Benefit Plan"). The Defined Benefit Plans have no accumulated or waived funding deficiencies within the meaning of Section 412 of the Code nor have any extensions of any amortization period within the meaning of Section 412 of the Code or 302 of ERISA been applied for with respect thereto. The present value of the benefit liabilities (within the meaning of Section 4041 of ERISA) of the Defined Benefit Plans, determined on a termination basis using actuarial assumptions that would be used by the PBGC does not exceed by more than $1,000,000 the value of the Plans' assets. No facts exist with respect to the Defined Benefit Plans which would give rise to a lien on the assets of Parent under Section 4068 of ERISA. All the assets of the Defined Benefit Plans are cash, readily marketable securities or insurance contracts.
(f) Parent has fiduciary liability insurance in effect covering the fiduciaries of the Employee Plans (including Parent) with respect to whom Parent may have liability, and within 20 business days of the date hereof, Parent will provide the Company with a statement of the amount of such insurance.
Employee Benefit Programs During the Employment Term, the Executive shall be entitled to participate in all employee pension and welfare benefit plans and programs made available to the Company’s senior level executives.
Employee Benefits Plans Schedule 3.10 hereto identifies each ERISA Plan and Multiemployer Plan as of the Effective Date. No ERISA Event has occurred or could reasonably be expected to occur. With respect to any Pension Plan, no accumulated funding deficiency exists for which there would be an excise tax under Code Section 4971. With respect to each ERISA Plan that is intended to be qualified under Code Section 401(a), (a) the ERISA Plan and any associated trust operationally comply with the applicable requirements of Code Section 401(a); (b) the ERISA Plan and any associated trust have been amended to comply with all such requirements as currently in effect, other than those requirements for which a retroactive amendment can be made within the “remedial amendment period” available under Code Section 401(b) (as extended under Treasury Regulations and other Treasury pronouncements upon which taxpayers may rely); (c) the ERISA Plan and any associated trust have received a favorable determination letter from the Internal Revenue Service stating that the ERISA Plan qualifies under Code Section 401(a), that the associated trust qualifies under Code Section 501(a) and, if applicable, that any cash or deferred arrangement under the ERISA Plan qualifies under Code Section 401(k), unless the ERISA Plan was first adopted at a time for which the above-described “remedial amendment period” has not yet expired; (d) the ERISA Plan currently satisfies the requirements of Code Section 410(b), subject to any retroactive amendment that may be made within the above-described “remedial amendment period”; and (e) no contribution made to the ERISA Plan is subject to an excise tax under Code Section 4972, in each case, except for noncompliances that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect. With respect to any Pension Plan (other than the Computervision Pension Plan), the “accumulated benefit obligation” of Controlled Group members with respect to the Pension Plan (as determined in accordance with Statement of Accounting Standards No. 87, “Employers’ Accounting for Pensions”) does not exceed the fair market value of Pension Plan assets.
Effect on Other Employee Benefit Plans The value of the Award subject to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating benefits under any employee benefit plan (other than the Plan) sponsored by the Company or any Affiliate except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any or all of the employee benefit plans of the Company or any Affiliate.
EMPLOYEE BENEFIT PROGRAM (i) During the TERM, the EMPLOYEE shall be entitled to participate in all formally established employee benefit, bonus, pension and profit-sharing plans and similar programs that are maintained by the EMPLOYERS from time to time, including programs in respect of group health, disability or life insurance, reimbursement of membership fees in civic, social and professional organizations and all employee benefit plans or programs hereafter adopted in writing by the Boards of Directors of the EMPLOYERS, for which senior management personnel are eligible, including any employee stock ownership plan, stock option plan or other stock benefit plan (hereinafter collectively referred to as the "BENEFIT PLANS"). Notwithstanding the foregoing sentence, the EMPLOYERS may discontinue or terminate at any time any such BENEFIT PLANS, now existing or hereafter adopted, to the extent permitted by the terms of such plans and shall not be required to compensate the EMPLOYEE for such discontinuance or termination.
(ii) After the expiration of the TERM or the termination of the employment of the employee for any reason other than JUST CAUSE (as defined hereinafter), the EMPLOYERS shall provide a group health insurance program in which the EMPLOYEE and her spouse will be eligible to participate and which shall provide substantially the same benefits as are available to retired employees of the EMPLOYERS on the date of this AGREEMENT until both the EMPLOYEE and her spouse become 65 years of age; provided, however that all premiums for such program shall be paid equally by the EMPLOYERS and the EMPLOYEE and/or her spouse after the EMPLOYEE's retirement; provided further, however, that the EMPLOYEE may only participate in such program for as long as the EMPLOYERS elect in their sole discretion to make available an employee group health insurance program which permits the EMPLOYERS to make coverage available for retirees.
Extended Health Care Benefits The City will provide for all employees by contract through an insurer selected by the City an Extended Health Care Plan which will provide extended health care benefits. The City shall pay one hundred per cent (100%) of the premiums, which will include any premiums payable under The Health Insurance Act, R.S.O. 1990, as amended.
Employee Benefits Matters (a) Parent hereby agrees that, for a period of one (1) year immediately following the Effective Time, it shall, or it shall cause the Surviving Corporation and its Subsidiaries to provide each Employee as of the Effective Time (each, a “Continuing Service Provider”) to the extent such Continuing Service Provider remains employed by Parent or its Subsidiaries with (i) a base salary or wage rate that is not less than the base salary or wage rate provided by the Company Group to such Continuing Service Provider as of immediately prior to the Effective Time, (ii) target annual cash incentive compensation opportunities for such Continuing Service Provider that are no less favorable than those in effect immediately prior to the Effective Time, and (iii) all other employee benefits (excluding any equity or equity-based compensation, severance, defined benefit pension benefits, non-qualified deferred compensation benefits, retiree health and welfare benefits or change in control, transaction or retention bonuses or payments) that are substantially comparable, in the aggregate to either (A) those in effect for such Continuing Service Providers immediately prior to the Effective Time or (B) those provided by Parent or its Subsidiaries to similarly situated employees of Parent or its Subsidiaries. Without limiting the generality of this Section 6.05(a), and subject to Section 6.05(f) from and after the Effective Time, Parent shall, or it shall cause the Surviving Corporation and its Subsidiaries, to honor all obligations under the Plans other than those terminated pursuant to Section 6.05(e), in each case in accordance with and subject to their terms as in effect immediately prior to the Effective Time, including with respect to any payments, benefits or rights arising as a result of the Transactions (either alone or in combination with any other event).
(b) Parent shall, or shall cause the Surviving Corporation and its Subsidiaries to cause Continuing Service Providers to receive full service credit for purposes of eligibility to participate and vesting (but not for benefit accrual purposes, except for paid time off and severance) under any employee benefit plan, program, policy or arrangement, in each case, established or maintained by Parent, the Surviving Corporation or any of their respective Subsidiaries under which each Continuing Service Provider may be eligible to participate on or after the Effective Time (a “Parent Plan”) to the same extent recognized by the Company or any of the Company Subsidiaries under comparable Plans immediately prior to the Effective Time; provided, however, that such crediting of service shall not be credited for the purposes of any retiree health or welfare plan, defined benefit pension plan or long-term equity incentive program (including in respect of any “retirement” provisions thereunder) and shall not operate to duplicate any benefit or the funding of any such benefit. In addition, Parent shall use reasonable best efforts to (i) waive, or cause to be waived, any limitations on benefits relating to any pre-existing conditions under a Parent Plan to the extent such conditions are covered immediately prior to the Effective Time a comparable Plan and to the same extent such limitations are waived under such Plan as in effect immediately prior to the Effective Time and (ii) recognize, for purposes of the annual deductible and out-of-pocket limits under its medical and dental plans, the deductible and out-of-pocket expenses paid by Continuing Service Provider in the calendar year in which the Effective Time occurs to the same extent recognized under any comparable Plan prior to the Effective Time.
(c) With respect to each Continuing Service Provider whose employment is terminated without cause during the period commencing on the Closing Date and ending one (1) year after the Closing Date, Parent shall, or it shall cause the Surviving Corporation and its Subsidiaries, to provide such Continuing Service Provider with severance benefits equal in value to the severance benefits determined in accordance with (and subject to the terms and conditions of) the policy set forth on Section 6.05(c) of the Company Disclosure Schedule, in each case, taking into account the Continuing Service Provider’s service with the Company Group prior to the Closing and with Parent or its Subsidiaries on or after the Closing.
(d) To the extent the Closing Date occurs in the 2024 calendar year, Parent shall, or it shall cause the Surviving Corporation and its Subsidiaries to, continue any Plan that is an annual bonus plan for the 2024 calendar year and will administer it in the ordinary course of business consistent with past practice and taking into account determinations made prior to the Closing with respect to such annual bonus program or target amounts thereunder, in all cases pursuant to and subject to the terms of Section 6.05(d) of the Company Disclosure Schedule.
(e) If requested by Parent as of at least ten (10) days prior to the Closing Date (but conditioned upon the occurrence of the Closing), the Company shall take all necessary actions to terminate or cause to be terminated any or all of the Plans sponsored or maintained by the Company or any Company Subsidiaries. The Company shall, or shall cause its applicable Affiliate to, provide Parent with evidence that any requested terminated Plan has been terminated, with the termination of the applicable Plans effective no later than the day immediately preceding the Closing Date, pursuant to a duly adopted resolution of the Company or its applicable Affiliate (the form and substance of which shall be subject to review and approval by Parent, which approval shall not be unreasonably withheld, conditioned or delayed) no later than the day immediately preceding the Effective Time.
(f) Without limiting the generality of Section 9.09, nothing contained in this Agreement is intended to be treated as an amendment to any Plan or any employee benefit plan or arrangement of Parent or any of its Affiliates, or to create any third-party beneficiary rights in any Employee or Non-Employee Service Provider, any beneficiary or dependent thereof, or any collective bargaining representative thereof. Nothing contained herein, express or implied, shall (i) alter or limit the ability of Parent or the Surviving Corporation or any of their respective Affiliates to amend, modify or terminate any Plan or any other benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them or (ii) create any rights to continued employment or service with Parent, the Surviving Corporation or any Company Subsidiary or any of their respective Affiliates or in any way limit the ability of Parent, the Surviving Corporation or any Company Subsidiary or any of their respective Affiliates to terminate the employment or service of any Employee or Non-Employee Service Provider at any time and for any reason.
Special Aggregation Rule Applicable to Relationship Managers For purposes of determining the aggregate balance or value of accounts held by a person to determine whether an account is a High Value Account, a Reporting Financial Institution shall also be required, in the case of any accounts that a relationship manager knows or has reason to know are directly or indirectly owned, controlled, or established (other than in a fiduciary capacity) by the same person, to aggregate all such accounts.
ERISA and Employee Benefits Matters (A) To the knowledge of the Company, no “prohibited transaction” as defined under Section 406 of ERISA or Section 4975 of the Code and not exempt under ERISA Section 408 and the regulations and published interpretations thereunder has occurred with respect to any Employee Benefit Plan. At no time has the Company or any ERISA Affiliate maintained, sponsored, participated in, contributed to or has or had any liability or obligation in respect of any Employee Benefit Plan subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA, or Section 412 of the Code or any “multiemployer plan” as defined in Section 3(37) of ERISA or any multiple employer plan for which the Company or any ERISA Affiliate has incurred or could incur liability under Section 4063 or 4064 of ERISA. No Employee Benefit Plan provides or promises, or at any time provided or promised, retiree health, life insurance, or other retiree welfare benefits except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or similar state law. Each Employee Benefit Plan is and has been operated in material compliance with its terms and all applicable laws, including but not limited to ERISA and the Code and, to the knowledge of the Company, no event has occurred (including a “reportable event” as such term is defined in Section 4043 of ERISA) and no condition exists that would subject the Company or any ERISA Affiliate to any material tax, fine, lien, penalty or liability imposed by ERISA, the Code or other applicable law. Each Employee Benefit Plan intended to be qualified under Code Section 401(a) is so qualified and has a favorable determination or opinion letter from the IRS upon which it can rely, and any such determination or opinion letter remains in effect and has not been revoked; to the knowledge of the Company, nothing has occurred since the date of any such determination or opinion letter that is reasonably likely to adversely affect such qualification; (B) with respect to each Foreign Benefit Plan, such Foreign Benefit Plan (1) if intended to qualify for special tax treatment, meets, in all material respects, the requirements for such treatment, and (2) if required to be funded, is funded to the extent required by applicable law, and with respect to all other Foreign Benefit Plans, adequate reserves therefor have been established on the accounting statements of the applicable Company or subsidiary; (C) the Company does not have any obligations under any collective bargaining agreement with any union and no organization efforts are underway with respect to Company employees. As used in this Agreement, “Code” means the Internal Revenue Code of 1986, as amended; “Employee Benefit Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA, including, without limitation, all stock purchase, stock option, stock-based severance, employment, change-in-control, medical, disability, fringe benefit, bonus, incentive, deferred compensation, employee loan and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA, under which (x) any current or former employee, director or independent contractor of the Company or its subsidiaries has any present or future right to benefits and which are contributed to, sponsored by or maintained by the Company or any of its respective subsidiaries or (y) the Company or any of its subsidiaries has had or has any present or future obligation or liability; “ERISA” means the Employee Retirement Income Security Act of 1974, as amended; “ERISA Affiliate” means any member of the company’s controlled group as defined in Code Section 414(b), (c), (m) or (o); and “Foreign Benefit Plan” means any Employee Benefit Plan established, maintained or contributed to outside of the United States of America or which covers any employee working or residing outside of the United States.
Employee Benefit Plans and Compensation (a) For purposes of this Section 2.22, the following terms shall have the meanings set forth below:
