Employee Benefit Matters/Employees. (a) Section 4.11(a) of the Company Disclosure Letter sets forth a complete list, as of the date hereof, of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not subject to ERISA), (ii) employment, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plans, programs, policies or agreements and (iii) medical, vision, dental or other health plans, life insurance plans, or fringe benefit plans, programs, policies or agreements, in each case, whether oral or written, maintained or contributed to by the Company or any of its Subsidiaries, or required to be maintained or contributed to by the Company of its Subsidiaries or otherwise providing for payments or benefits for or to any current or former employees, directors, officers or consultants of the Company or any of its Subsidiaries and/or their dependents, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory or noncontributory (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a) of the Company Disclosure Letter, to the extent applicable, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all Plans, including amendments thereto; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable Law) and the most recent actuarial report prepared in respect of any Plan, if applicable; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by or to provide benefits under any Plan. (b) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to adversely affect the qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Company, each Plan and any related trust complies with, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan. (c) No Plan is (i) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes to, or has, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancy. (d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s termination). (e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code. (f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax). (g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plan; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards); (iv) cause the Company to transfer or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closing. (h) All Company Options have (or with respect to such options which have been exercised as of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was granted. (i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan. (j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There are no labor unions, works councils or other employee representatives or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries. (k) Except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, including Laws relating to discrimination, hours of work, the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed and, to the Knowledge of the Company, no such audit or investigation is in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisions.
Appears in 6 contracts
Samples: Merger Agreement (Skullcandy, Inc.), Merger Agreement (Mill Road Capital II, L.P.), Merger Agreement (Mill Road Capital II, L.P.)
Employee Benefit Matters/Employees. (a) Section 4.11(a4.12(a) of the Company Disclosure Letter sets forth a true, correct and complete list, as of the date hereof, list of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not subject to ERISA), and (ii) employment, independent contractor, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, employee loan, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth monthbonus, seniority premiumincentive, bonus or other incentive plansdisability, programs, policies or agreements and (iii) medical, vision, dental dental, health, life insurance, fringe benefit or other health planscompensation or benefit plan, life insurance plansprogram, agreement, arrangement policy, trust, fund or fringe benefit planscontract, programs, policies whether written or agreementsunwritten, in each case, whether oral or writtensponsored, maintained or contributed to, or required to be sponsored, maintained or contributed to, by the Company or any of its Subsidiaries, or required to be maintained or contributed to by the Company of its Subsidiaries or otherwise providing for payments any of their ERISA Affiliates or benefits for or with respect to any current or former employees, directors, officers or consultants of which the Company or any of its Subsidiaries and/or their dependentsmay have any obligation or liability, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory actual or noncontributory contingent (collectively, whether or not material, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a) of the Company Disclosure Lettermaterial Plans, to the extent applicable, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all Planscurrent Plan documents, including amendments thereto, or a written summary in the case of any unwritten Plan; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if for which a Form 5500 filing is required by applicable Law) and the most recent actuarial report prepared in respect of any Plan, if applicable; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Plan; and (E) each any related material Contracts, including trust agreement relating to any Plan (as applicable); agreements, insurance contracts, and (F) all insurance policies purchased by or to provide benefits under any Planadministrative services agreements.
(b) (i) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, status and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter there are no facts or prototype opinion letter, as applicable, circumstances that would could reasonably be expected to adversely affect such qualification or cause the qualification imposition of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To liability, penalty or Tax under ERISA, the Knowledge of the CompanyCode or other applicable Laws, (ii) each Plan and any related trust complies with, and has in all material respects been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, with ERISA, the Code and other applicable Laws. Except , and (iii) as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, other than routine claims for benefitsdate hereof, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending orpending, or to the Knowledge of the Company, threatened threatened, against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any PlanPlan (other than routine claims for benefits).
(c) No Plan is is, and the Company and its ERISA Affiliates have not in the last ten (i10) years contributed to, a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes to, or has, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancyCode.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no No Plan provides for post-retirement or other post-employment health or welfare benefits (benefits, other than as required by (i) health care continuation coverage as required by Section 4980B of the Code or any similar state law Law (“COBRA”) or ERISA, (ii) coverage through the end of the calendar month in which a termination of employment occurs occurs, or (iii) under an applicable employment agreement or severance agreement, plan or policy set forth on Section 4.12(a) of the Company Disclosure Letter requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following or the employee’s termination)beneficiaries.
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed required under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letterthis Agreement, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries (each, a “Participant”) or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plandirector; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit benefit; or (iv) result in the payment of any amount or any benefits that would, individually or in combination with any other such payment or benefits, constitute an “excess parachute payment”, as defined in 280G(b)(1) of the Code, to any Participant.
(f) No Participant is entitled to any gross-up, make-whole or other additional payment from the Company or any other Person in respect of any Tax (including Federal, state, provincial, territorial, municipal, local and non-U.S. income, excise and other Taxes (including Taxes imposed under Section 4999 or 409A of the Code)) or interest or penalty related thereto.
(g) No Plan is maintained outside the jurisdiction of the United States, is by its terms governed by the Laws of any jurisdiction other than the Company Stock Awards); (iv) cause United States or provides compensation or benefits to Participants providing services primarily outside of the Company to transfer or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the ClosingUnited States.
(h) All Neither the Company Options have nor any of its Subsidiaries has (i) applied for or with respect received any loan under the Paycheck Protection Program under the CARES Act or (ii) deferred any Taxes under Section 2302 of the CARES Act or claimed any Tax credit under Section 2301 of the CARES Act or Sections 7001-7003 of the FFCRA.
(i) The Company has made available to such options which have been exercised Parent a list of all employees of the Company and its Subsidiaries that is true, complete and correct in all material respects as of the date of this Agreement, hadincluding for each such employee, to the extent applicable: (i) name, position or job title, date of hire, employing entity and work location; (ii) base salary or wage rate and target annual bonus amount; (iii) part-time, full-time or temporary status; (iv) exempt or non-exempt status; and (v) whether such employee is subject to a per share exercise price restrictive covenant agreement and the applicable form of such agreement, which form has been made available to Parent. The Company has also made available to Parent a list of all independent contractors of the Company and its Subsidiaries that is (or with respect to such options which have been exercised true, complete and correct in all material respects as of the date of this Agreement, was) at least equal including for each such independent contractor, to the fair market value extent applicable: (A) name, function, date of engagement, engaging entity and work location; (B) applicable fees; and (C) whether such independent contractor agreement is subject to a share restrictive covenants agreement and the applicable form of Company Common Stock as of the date the option was granted.
(i) Except as may be required by applicable Lawsuch agreement, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment which form has been made available to amend or modify any existing PlanParent.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither Neither the Company nor any of its Subsidiaries is the subject of any ongoing or pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there Law. There is no pending orongoing, pending, or to the Knowledge of the Company, threatened threatened, (i) labor strike, dispute, walkout, work stoppage, slowdown slowdown, lockout or lockout other material labor dispute with respect to employees of the Company or any of its Subsidiaries or (ii) effort to organize or represent the labor force of the Company or any of its Subsidiaries. As of the date hereof, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither neither the Company nor any of its Subsidiaries is a party to to, or bound by by, any collective bargainingbargaining agreement or other labor-related agreement or agreement with any labor union or other organization, works council or similar agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There and there are no labor unions, works councils unions or other employee representatives or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, representing any employee of the Company or any of its Subsidiaries.
(k) ExceptThe Company and its Subsidiaries taken as a whole, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance in all material respects with all applicable Laws relating to employment, employment practices or labor relations, including Laws relating to discrimination, harassment, employee leave, hours of work, immigration, health and safety, equal opportunity, plant closures and layoffs, workers’ compensation, the classification of service providers and the payment of wages or overtime wages.
(l) No investigation, contractual obligationsreview, consultation with employees, use of temporary complaint or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of proceeding by or before any Governmental Authority responsible for the enforcement of labor or employment Laws with respect to conduct an audit or investigation of the Company or any Subsidiary that has not been completed andof its Subsidiaries in relation to the application for employment or services by, the employment or services of, or the termination of employment or services of any individual is ongoing or, to the Knowledge of the Company, no pending or threatened, nor has the Company or any of its Subsidiaries received any written notice indicating an intention to conduct the same.
(m) Since January 1, 2018, the Company and its Subsidiaries have not received, been involved in or been subject to any Legal Proceedings or any other material complaints, claims or actions alleging sexual harassment, sexual misconduct, bullying or discrimination committed by any director, officer or employee of the Company or any of its Subsidiaries or alleging a workplace culture that encourages or is conducive to the foregoing, and neither the Company nor any of its Subsidiaries is party to a settlement agreement involving any such audit allegations.
(n) No employee or investigation independent contractor of the Company or any of its Subsidiaries is in progress; any respect in violation of any term of any nondisclosure agreement, nondisclosure obligation, non-competition agreement, restrictive covenant or other similar obligation: (iiii) to the Company or any of its Subsidiaries or (ii) to a former employer of any such employee or independent contractor relating to the (A) right of such employee or independent contractor to be employed or to be engaged by the Company and its Subsidiaries or (B) the Company has filed all reportsknowledge or use of trade secrets or proprietary information.
(o) Each individual who currently is providing, information and notices required under applicable Laws regarding or during the hiringlast three (3) years provided, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified or any of its Subsidiaries as (A) an independent contractor or other non-employee status, (B) and is and was properly classified and treated as an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) independent contractor by the Company has paid or accrued all wages and compensation due its applicable Subsidiary. Each individual who currently is providing, or during the last three (3) years provided, leased or contracted services to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees or any of its Subsidiaries through a third party service provider is not and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) was not an employee of the Company has complied or any of its Subsidiaries while providing such services. The Company and its Subsidiaries do not have a single employer, joint employer alter ego or similar relationship with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisionsentity.
Appears in 3 contracts
Samples: Merger Agreement (Endo, Inc.), Merger Agreement (Biospecifics Technologies Corp), Merger Agreement (Endo International PLC)
Employee Benefit Matters/Employees. (a) Section 4.11(a3.16(a) of the Company Disclosure Letter Schedule sets forth a complete list, as of the date hereof, list of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not subject to ERISA), (ii) employment, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth monthbonus, seniority premiumcommission, bonus or other incentive plans, programs, policies or agreements agreements, and (iii) medical, vision, dental or other health plans, life insurance plans, or fringe benefit plans, programs, policies or agreements, in each case, whether oral or written, maintained or contributed to by the Company or any of its Subsidiaries, or required to be maintained or contributed to by the Company of or its Subsidiaries or otherwise providing for payments payments, advance notice of termination, or benefits for or to any current or former employees, directors, officers or consultants of the Company or any of its Subsidiaries and/or their dependents, regardless dependents or to which the Company or any of whether it its Subsidiaries contributes or is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory obligated to contribute or noncontributory has or may have any material liability (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a3.16(a) of the Company Disclosure LetterSchedule, to the extent applicable, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all Plans, including amendments thereto; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable Law) and the most recent actuarial report prepared in respect of any Plan, if applicablePlan that is a single employer pension plan subject to Title IV of ERISA; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by material correspondence relating to any Plan to or to provide benefits under from the IRS, the United States Department of Labor, or any Planother Governmental Body since January 1, 2014 through the Effective Time.
(b) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to materially and adversely affect the qualification of any such Plan in or the imposition of any way that would reasonably be likely to have a Company Material Adverse Effectmaterial liability, penalty or tax under ERISA or the Code. To the Knowledge of the Company, each Each Plan and any related trust complies withcomplies, and has been maintained and administered in compliance withmaterial compliance, and qualifies for the expected Tax preferential treatment under, with ERISA, the Code and other applicable LawsLaws and all material payments and contributions required to be made under the terms of any Plan have been made or the amount of such payment or contribution obligation has been reflected in the Company SEC Reports filed with or furnished to the SEC prior to the date hereof which are publicly available prior to the date of this Agreement. Except as set forth on Section 4.11(bFor the last six (6) years, the Company has performed in all material respects all obligations required to be performed under, is not in any material respect in default under or in violation of, and, to the Knowledge of the Company Disclosure Letter Company, there is no default or violation in the Financial Statements, each Plan is fully funded to the extent required any material respect by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect other party to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, other Other than routine claims for benefits, there are no material suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for material benefits under any Plan. No transaction has occurred with respect to any Plan that would subject the Company to either a material liability pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code that is not curable without material cost.
(c) No Plan is (i) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), ) (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), ) or (iii) another pension plan, including a other pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains maintains, or contributes to, or has, within the past six (6) years, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancyCode.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no No Plan provides for post-retirement or other post-employment welfare benefits and neither the Company nor any of its Subsidiaries has any present or future obligation to provide post-retirement welfare benefits to or make any payment to, or with respect to, any Company Employee pursuant to any retiree medical, retiree disability, retiree life insurance benefit plan, or other retiree welfare plan (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s termination).
(e) Except All Foreign Plans comply in all material respects with applicable Laws. With respect to each Foreign Plan, either (i) such Foreign Plan does not require funding and is not required to be recognized as set forth in Section 4.11(ea book-reserved plan, or (ii) the fair market value of the Company Disclosure Letterassets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide in full for the accrued benefit obligations, as of the date of this Agreement, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to and obligations under such Foreign Plan, and no transaction contemplated by this Agreement shall cause any such assets or insurance obligations to be less than such benefit obligations.
(f) No Plan or other agreement or Contract between the Company and an employee Company Employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(fg) Neither Each Plan that is subject to Section 409A of the Company nor any Code has been administered in compliance in all material respects with its terms and the operational and documentary requirements of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that Section 409A of the Code and the regulations thereunder. No Plan provides for the an obligation to gross-up up, indemnify or reimbursement of Taxes imposed under otherwise reimburse any Company Employee for any Tax incurred by such Company Employee pursuant to Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax)Code.
(gh) Except as set forth in Section 4.11(g) provided by the terms of the Company Disclosure Letterthis Agreement, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent eventstermination event): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plandirector; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards)benefit; or (iv) cause the Company otherwise give rise to transfer or set aside any assets to fund any benefits material liability under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closing.
(h) All Company Options have (or with respect to such options which have been exercised as of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was granted.
(i) Except as may be required by applicable LawNeither the Company nor any of its Subsidiaries is a party to, or as contemplated under this bound by, any Labor Agreement, nor is any such Labor Agreement presently being negotiated, nor is there any duty on the part of the Company does not have or any announced plan of its Subsidiaries to bargain or legally binding commitment consult with any labor organization, trade or labor union, employees’ association or similar organization representing any of its employees (collectively, “Labor Organizations”), and there are no Labor Organizations representing, purporting to amend represent, or, to the Knowledge of the Company, seeking to represent any employees of the Company or modify any existing Plan.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither of its Subsidiaries. Neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) Law, there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither within the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There are no labor unions, works councils or other employee representatives or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiariespast three (3) years.
(k) Except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, including Laws relating to discrimination, hours of work, the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed and, to the Knowledge of the Company, no such audit or investigation is in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisions.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Raptor Pharmaceutical Corp), Merger Agreement (Horizon Pharma PLC)
Employee Benefit Matters/Employees. (a) Section 4.11(a) of the Company Disclosure Letter sets forth a complete list, as of the date hereof, list of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not subject to ERISA), (ii) employment, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plans, programs, policies or agreements and (iii) medical, vision, dental or other health plans, or life insurance plans, or fringe benefit plans, programs, policies or agreements, in each case, whether oral or written, maintained or contributed to by the Company or any of its Subsidiaries, or required to be maintained or contributed to by the Company of or its Subsidiaries or otherwise providing for payments or benefits for or to the benefit of any current or former employees, directors, officers or consultants of the Company or any of its Subsidiaries and/or their dependents, regardless or otherwise with respect to which the Company or any of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory or noncontributory its Subsidiaries has any liability (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a) of the Company Disclosure Letter, to the extent applicable, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all Plans, including amendments thereto; (B) the three most recent annual report reports on Form 5500 filed with respect to each Plan (if required by applicable Law) and the most recent actuarial report prepared in respect of any Plan, if applicable); (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Plan; and (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by or to provide benefits under any Plan.
(b) Each Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to adversely affect cause the loss of qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse EffectPlan. To the Knowledge of the Company, each Plan and any related trust complies withcomplies, and has been maintained and administered in compliance withall material respects in compliance, and qualifies for the expected Tax preferential treatment under, with ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, other Other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect (other than routine claims for benefits) that would reasonably be expected to their duties result in material liability to the Plans, or asserting any rights to or claims for benefits under any PlanCompany.
(c) No Plan is (i) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), ) (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), ) or (iii) another pension plan, including a other pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes to, or has, within the past six (6) years, sponsored, maintained or contributed to, or been required to contribute to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancyCode.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no No Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) other applicable Law or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s terminationoccurs).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plandirector; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards)benefit; or (iv) cause give rise to the payment of any amount that would not be deductible pursuant to Section 280G of the Code or any excise Tax under Section 4999 of the Code.
(f) The Company and its Subsidiaries have made an offer of affordable minimum essential coverage to their respective employees to the extent required under the Affordable Care Act and the Code, and neither the Company nor any of its Subsidiaries is otherwise liable for any material assessable payment, taxes or other penalties under the Affordable Care Act.
(g) Each Plan that provides for the deferral of compensation subject to transfer or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict Section 409A of the right to amend, terminate or transfer Code is and has been documented in writing and operated and administered in all material respects in accordance with Code Section 409A and the assets of any Plan on or following the Closingregulations thereunder.
(h) All Company Options have (or with respect to such options which have been exercised as of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was granted.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there Law. There is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, picketing, refusal to cross picket lines, slowdown or lockout with respect to any employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither the Company nor any of its Subsidiaries is a party to to, or bound by by, any collective bargainingbargaining agreement, works council or similar agreement, noror other contract of any kind with any labor organization, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There and there are no labor unions, works councils unions or other employee representatives or organizations representing, or, to the Knowledge of the Company Company, purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries.
(ki) Except, in each case, Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employmentemployment and employment practices, including Laws relating to collective bargaining, affirmative action, civil rights, discrimination, hours of work, the payment of wages or overtime wages, contractual obligationsthe classification of employees and contractors, consultation with employeeswages, use meal and rest breaks, leave, privacy, safety and health, workers’ compensation and terms and conditions of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equityemployment; (ii) there are no charges against either of the Company or any of its Subsidiaries pending or, to the Knowledge of the Company, threatened before the Equal Employment Opportunity Commission or any national, federal, state or local agency, domestic or foreign, responsible for the prevention of unlawful employment practices; (iii) each of the Company and each its Subsidiaries is in material compliance with the requirements of the Immigration Reform Control Act of 1986 and any similar Laws regarding employment of workers who are not citizens of the country in which services are performed; and (iv) since January 1, 2017, neither the Company nor any of its Subsidiaries has not received any written notice of the intent of from any Governmental Authority national, federal, state or local agency, domestic or foreign, responsible for the enforcement of labor or employment Laws of an intention to conduct an audit or investigation of either of the Company or any Subsidiary that has not been completed andits Subsidiaries, and to the Knowledge of the Company, no such audit or investigation is in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisions.
Appears in 2 contracts
Samples: Merger Agreement (Aratana Therapeutics, Inc.), Merger Agreement (Elanco Animal Health Inc)
Employee Benefit Matters/Employees. (a) Section 4.11(a3.09(a) of the Company Disclosure Letter sets forth a complete list, as of the date hereof, list of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974, as amended (whether or not subject to “ERISA), ”) and (ii) employment, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other compensation or incentive plans, programs, policies or agreements and agreements, (iii) medical, vision, dental or other health plans, life insurance plans, or fringe benefit plans, programs, policies or agreements, in each case, whether oral or written, maintained or contributed to by the Company or any of its SubsidiariesCompany, or required to be maintained or contributed to by the Company of its Subsidiaries or otherwise providing for payments or benefits for or to any current or former employees, directors, officers or consultants of the Company or any of its Subsidiaries and/or their dependents, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory or noncontributory dependents (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a3.09(a) of the Company Disclosure Letter, to the extent applicable, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all Plans, including amendments thereto; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable Law) and the most recent actuarial report prepared in respect of any Plan, if applicablePlan that is a single employer pension plan subject to Title IV of ERISA; (C) the most recent summary plan description or other equivalent written communications by the Company or its Affiliates for each Plan for which a summary plan description is required by applicable Law Plan, if such written communications have previously been prepared and distributed to Company employees, and all related summaries of material modifications; (D) the most recent IRS Internal Revenue Service determination, notification, notification or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by material correspondence to or from the IRS, the Department of Labor or any other Governmental Entity during the past three years; and (G) any discrimination, coverage or similar annual tests performed during the last two plan years. None of the Plans is subject to provide benefits under any Planthe Laws of a jurisdiction outside of the United States.
(b) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS Internal Revenue Service or may rely upon a favorable prototype opinion letter from the IRS Internal Revenue Service as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to adversely affect the qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse EffectPlan. To the Knowledge of the Company, each Each Plan and any related trust complies with, and has been maintained and administered in material compliance with, and qualifies for the expected Tax preferential treatment under, with ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, other Other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan.
(c) No Plan is (i) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), ) (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), ) or (iii) another pension plan, including a other pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates Affiliate sponsors, maintains maintains, or contributes to, or has, within the past six (6) years, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code Code. “ERISA Affiliate” shall mean any entity (whether or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancy.
(dnot incorporated) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Plan provides for post-retirement or other post-employment welfare benefits (other than the Company that, together with the Company, is required to be treated as required by health care continuation coverage as required by a single employer under Section 4980B of the Code or any similar state law 414(b), (“COBRA”c), (m) or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s termination).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1o) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plan; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards); (iv) cause the Company to transfer or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closing.
(h) All Company Options have (or with respect to such options which have been exercised as of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was granted.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There are no labor unions, works councils or other employee representatives or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries.
(k) Except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, including Laws relating to discrimination, hours of work, the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed and, to the Knowledge of the Company, no such audit or investigation is in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisions.
Appears in 2 contracts
Samples: Merger Agreement (Roche Holding LTD), Merger Agreement (Ignyta, Inc.)
Employee Benefit Matters/Employees. (a) Section 4.11(a4.10(a) of the Company Disclosure Letter sets forth a complete list, as of the date hereof, list of each material Plan. For purposes of this Agreement, the term “Plan” shall mean each (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (ERISA, whether or not subject to ERISA), (ii) employmentii)employment, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plans, programs, policies or agreements agreements, and (iii) medical, vision, dental or other health plans, life insurance plans, or fringe benefit plans, programs, policies or agreements, in each casecase of clauses (i) through (iii), whether oral or written, maintained or contributed to by the Company or any of its Subsidiaries, or required to be maintained or contributed to by the Company of its Subsidiaries or otherwise providing for payments or benefits for or to any current or former employees, directors, officers officers, consultants or consultants other service providers of the Company or any of its Subsidiaries and/or their dependents, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory dependents or noncontributory (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposesbeneficiaries. With respect to the Plans listed on Section 4.11(a4.10(a) of the Company Disclosure Letter, to the extent applicable, true, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all Plans, including amendments thereto; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable Law) and the most recent actuarial report, financial statement or valuation report prepared in respect of any each Plan, if applicableany; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by material correspondence to or from any Governmental Authority relating to provide benefits under any Plan.
(b) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to adversely affect the qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Company, each Plan and any related trust complies with, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan.
(c) No Plan is (i) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes to, or has, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancy.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s termination).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plan; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards); (iv) cause the Company to transfer or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closing.
(h) All Company Options have (or with respect to such options which have been exercised as of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was granted.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There are no labor unions, works councils or other employee representatives or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries.
(k) Except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, including Laws relating to discrimination, hours of work, the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed and, to the Knowledge of the Company, no such audit or investigation is in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisions.
Appears in 2 contracts
Samples: Merger Agreement (Receptos, Inc.), Merger Agreement (Celgene Corp /De/)
Employee Benefit Matters/Employees. (a) Section 4.11(a4.09(a) of the Company Disclosure Letter sets forth a complete list, as of the date hereof, list of each material Plan. For purposes of this Agreement, the term “Plan” shall mean each (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA), (ii) employment, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plansplan, programsprogram, policies policy or agreements agreement, and (iii) medical, vision, dental or other health plansplan, life insurance plansplan, or fringe benefit plans, programs, policies or agreementsplan, in the case of each caseof clauses (i) through (iii), whether oral or written, maintained or contributed to by the Company or any of its SubsidiariesCompany, or required to be maintained or contributed to by the Company of its Subsidiaries or otherwise providing for payments or benefits for or to any current or former employees, directors, officers or consultants of the Company or any of its Subsidiaries and/or their dependents, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory or noncontributory (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a4.09(a) of the Company Disclosure Letter, to the extent applicable, true, correct and complete copies or summaries of the following have been delivered or made available to Parent by the Company: (A) all Plans, including amendments thereto; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable Law) and the most recent actuarial report, financial statement or valuation report prepared in respect of any each Plan, if applicableany; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS Internal Revenue Service determination, notification, notification or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by material correspondence to or from any Governmental Entity relating to provide benefits under any Plan.
(b) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to adversely affect the qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Company, each Plan and any related trust complies with, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan.
(c) No Plan is (i) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes to, or has, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancy.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s termination).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plan; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards); (iv) cause the Company to transfer or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closing.
(h) All Company Options have (or with respect to such options which have been exercised as of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was granted.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There are no labor unions, works councils or other employee representatives or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries.
(k) Except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, including Laws relating to discrimination, hours of work, the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed and, to the Knowledge of the Company, no such audit or investigation is in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisions.
Appears in 2 contracts
Samples: Merger Agreement (Cadence Pharmaceuticals Inc), Merger Agreement (Mallinckrodt PLC)
Employee Benefit Matters/Employees. (a) Section 4.11(a3.09(a) of the Company Disclosure Letter sets forth contains a true, correct and complete list, as of the date hereof, list of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not subject to ERISA), (ii) employment, consultingbonus, pension, retirement, superannuation, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock or other equity-based retirement, vacation, severance, disability, death benefit, hospitalization, medical or other employee benefit plan, program, arrangement, agreement, fund or commitment, including any “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each employment, retention, consulting, change in control, retentiontermination or severance plan, equity program, arrangement or equity-based compensationagreement entered into, stock purchasemaintained, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plans, programs, policies or agreements and (iii) medical, vision, dental or other health plans, life insurance plans, or fringe benefit plans, programs, policies or agreements, in each case, whether oral or written, maintained sponsored or contributed to by the Company or any of its SubsidiariesSubsidiaries or to which the Company or any of its Subsidiaries has any obligation to contribute (the “Plans”) provided, that Plans maintained in jurisdictions other than the United States (“Foreign Plans”) are not listed on Section 3.09(a) of the Disclosure Letter (but a list of Foreign Plans will be provided to Parent within 30 days following the date hereof). Prior to the date hereof, the Company has provided or made available (or, with respect to Foreign Plans, will provide or make available to Parent within 30 days of the date hereof) to Parent true, correct and complete copies of each of the following, as applicable, with respect to each Plan: (i) the plan document or agreement or, with respect to any Plan that is not in writing, a written description of the material terms thereof; (ii) the trust agreement, insurance contract or other documentation of any related funding arrangement; (iii) the summary plan description; (iv) the two most recent annual reports, actuarial reports and/or financial reports; (v) the most recent required Internal Revenue Service Form 5500, including all schedules thereto; (vi) any material written communication to or from any Governmental Entity; (vii) all amendments or modifications to any such documents; (viii) the most recent determination letter received from the Internal Revenue Service with respect to each Plan that is intended to be a “qualified plan” under Section 401 of the Code; (ix) any prospectus or other filing with the SEC; and (x) any comparable documents with respect to Plans subject to any foreign Laws that are required to be maintained prepared or contributed filed under the applicable Laws of such foreign jurisdiction.
(b) With respect to by each Plan, (i) all payments due from the Company or any of its Subsidiaries or otherwise providing for payments or benefits for or to any current or former employees, directors, officers or consultants date have been timely made and all amounts properly accrued to date as liabilities of the Company or any of its Subsidiaries and/or their dependentswhich have not been paid have been and will be properly recorded on the books of the Company, regardless of whether it (ii) each such Plan which is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory or noncontributory an “employee pension benefit plan” (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on as defined in Section 4.11(a3(2) of the Company Disclosure Letter, to the extent applicable, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all Plans, including amendments thereto; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable LawERISA) and the most recent actuarial report prepared in respect of any Plan, if applicable; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by or to provide benefits under any Plan.
(b) Each Plan that is intended to be qualified qualify under Section 401(a) 401 of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter Internal Revenue Service with respect to such qualification, its related trust has been determined to be exempt from the IRS as to its qualified status, and, to the Knowledge taxation under Section 501(a) of the CompanyCode, and nothing has occurred since the date of such letter that has or is likely to adversely affect such qualification or exemption, (iii) there are no actions, suits or claims pending (other than routine claims for benefits) or, to the latest favorable determination letter knowledge of the Company, threatened with respect to such Plan or prototype opinion letteragainst the assets of such Plan and (iv) it has been operated and administered in compliance with its terms and all applicable Laws and regulations, as applicableincluding ERISA and the Code, in all material respects.
(c) Neither the Company nor any trade or business, whether or not incorporated (an “ERISA Affiliate”), which together with the Company would be deemed to be a “single employer” within the meaning of Section 4001(b) of ERISA, has incurred any material unpaid liability pursuant to Title I or Title IV of ERISA or the penalty, excise Tax or joint and several liability provisions of the Code and to the knowledge of Company no condition exists that would reasonably be expected to adversely affect cause the qualification of Company or any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Company, each Plan and any related trust complies with, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) ERISA Affiliate of the Company Disclosure Letter to incur any such liability (other than liability for benefits or premiums payable to the Pension Benefit Guaranty Corporation (“PBGC”) arising in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries hasordinary course that are not yet due), or is reasonably expected to haveafter the Effective Time, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan Parent or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Planof its Affiliates.
(cd) No Plan is With respect to each “employee pension benefit plan” (as defined in Section 3(2) of ERISA) as to which the Company or any of its Subsidiaries may incur any liability under Section 302 or Title IV of ERISA or Section 412 of the Code: (i) no such plan is a “multiemployer plan” (as defined in Section 3(37) of ERISA) or 4001(a)(3a “multiemployer plan” (as defined in Section 413 of the Code); (ii) no such plan has been terminated so as to result, directly or indirectly, in any material unpaid liability, contingent or otherwise, to the Company or any of its Subsidiaries under Title IV of ERISA; (iii) no complete or partial withdrawal from such plan has been made by the Company or any of its Subsidiaries, or by any other Person, so as to result in a material unpaid liability to the Company or any of its Subsidiaries, whether such liability is contingent or otherwise; (iv) to the knowledge of the Company, no proceeding has been initiated by any Person (including the PBGC) to terminate any such plan or to appoint a trustee for any such plan; (v) to the knowledge of the Company, no condition or event currently exists that would reasonably be expected to result, directly or indirectly, in any material liability of the Company or any of its Subsidiaries under Title IV of ERISA, whether to the PBGC or otherwise, on account of the termination of any such plan; (vi) no “reportable event” (as defined in ERISA) for which the 30 day reporting requirement has not been waived has occurred with respect to any such plan within the past twelve months, nor has any notice of such event or similar notice to any foreign regulatory agency been required to be filed for any such plan within the past twelve months; and (vii) no such plan has incurred any “accumulated funding deficiency” (as defined in Section 412 of the Code or Part 3 of Title I of ERISA), (ii) a plan that has two whether or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan subject to Title IV of ERISA or Section 412 of the Codewaived, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes toSubsidiaries has provided, or hasis required to provide, sponsored, maintained or contributed to, a Multiemployer Plan or other pension security to any such plan subject pursuant to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancy.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s termination).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1401(a)(29) of the Code.
(e) To the knowledge of the Company, no Plan is under audit or is subject of an investigation by the Internal Revenue Service, the U.S. Department of Labor or any other Governmental Entity.
(f) Neither the Company nor any of its Subsidiaries is party to, execution or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company delivery of this Agreement nor the consummation of the transactions contemplated hereby will (by this Agreement will, either alone or upon occurrence of in conjunction with any additional other event (whether contingent or subsequent events): otherwise), (i) entitle result in any current payment or former employeebenefit becoming due or payable, officeror required to be provided, consultant to any director, employee or independent contractor of the Company or any of its Subsidiaries, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation or (iv) result in any amount to fail to be deductible by reason of Section 280G of the Code.
(g) Except as disclosed in the financial statements contained in Company SEC Filings filed prior to the date hereof, with respect to each Plan that is a “welfare plan” (as defined in Section 3(1) of ERISA), neither the Company nor any of its Subsidiaries has any liability with respect to an obligation to provide welfare benefits, including death or medical benefits (whether or not insured) with respect to any Person beyond their retirement or other termination of service other than coverage mandated by Section 4980B of the Code or state Law (or other Law) or disability benefits under any employee welfare plan that have been fully provided for by insurance or otherwise.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, all premiums required to have been paid to date under the insurance policy have been paid.
(i) Neither the Company nor any of its Subsidiaries has disseminated in writing any intent or commitment (whether or not legally binding) to create or implement any additional employee benefit plan or to amend, modify or terminate any Plan of the Company, except for immaterial amendments to any Plan of the Company that will not result in an increase in the annual costs in respect of such plan incurred or to be incurred by the Company or any of its Subsidiaries.
(j) There are on the date hereof no outstanding loans or other extensions of credit between the Company or any of its Subsidiaries and any officer or director thereof.
(k) To the knowledge of the Company as of the date hereof, with respect to each Plan that is subject to Title IV of ERISA, there has been no material adverse change in the financial status of such Plan since the date of the most recent financial statements provided to Parent by the Company.
(l) To the knowledge of the Company as of the date hereof, substantially all current exempt employees of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plan; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than have executed an agreement with the Company Stock Awards); (iv) cause or such Subsidiary substantially in the form provided by the Company to transfer or set aside any assets Parent prior to fund any benefits under any Plan; or (v) limit or restrict the right date hereof, covering such topics as confidentiality of information, competition with the Company and rights to amend, terminate or transfer the assets of any Plan on or following the Closinginventions.
(hm) All Company Options have (or with respect to such options which have been exercised as of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was granted.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither Neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law Law. Section 3.09 of the Disclosure Letter sets forth a true, correct and complete list of all collective bargaining agreements to which the Company or has violated any Law pertaining of its Subsidiaries is a party. No labor union or other bargaining representative is engaged in or seeking to labor relations be engaged in collective bargaining with respect to employees of the Company or employment matters and (ii) there any of its Subsidiaries. There is no pending or, to the Knowledge knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither within the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar agreement, nor, to the Knowledge past five years.
(n) As of the Companydate hereof, is any such agreement being negotiated by no current employee having total annual compensation of more than $100,000 has given written notice to the Company or any of its Subsidiaries. There are no labor unions, works councils Subsidiaries of his or other employee representatives or organizations representing, or, her intent to the Knowledge of terminate employment with the Company purporting or such Subsidiary.
(o) With respect to represent or attempting to represent, any each open workers compensation claim exceeding $100,000 involving an employee of the Company or any of its Subsidiaries, the Company has provided to Parent, prior to the date hereof, the name, date of injury, payments made to date, current reserve by payment type (e.g., indemnity and medical expense), description of injury and location of employee. There are no other workers’ compensation claims open against the Company or any of its Subsidiaries nor, to the knowledge of the Company as of the date hereof, does any circumstance exist that is reasonably likely to result in such a claim.
(kp) Except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the The Company and each of its Subsidiaries is has complied in compliance all material respects with all applicable local, state, federal and foreign Laws relating to employment, including including, without limitation, Laws relating to discrimination, hours of work, work and the payment of wages or overtime wages. There are no complaints, contractual obligationslawsuits or other proceedings pending or, consultation to the knowledge of the Company, threatened against the Company or any of its Subsidiaries brought by or on behalf of any applicant for employment, any current or former employee or any class of the foregoing, relating to any such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment, or alleging any other discriminatory, wrongful or tortuous conduct in connection with employees, use of temporary or contingent workers, the employment relationship.
(q) There are no pending or, to the knowledge of minorsthe Company, occupational health and safetythreatened investigations, labor relationsaudits, withholdingcomplaints or proceedings against the Company or any of its Subsidiaries by or before any Governmental Entity involving any applicant for employment, workplace insuranceany current or former employee or any class of the foregoing, plant closingincluding, changes without limitation:
(i) the Equal Employment Opportunity Commission or any other state or local agency with authority to investigate claims or charges of employment discrimination in operations and/or pay equity; the workplace;
(ii) the Company and each United States Department of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company Labor or any Subsidiary that has not been completed and, other state or local agency with authority to the Knowledge investigate claims or charges in any way relating to hours of the Company, no such audit employment or investigation is in progress; wages;
(iii) the Company has filed all reports, information Occupational Safety and notices required under applicable Laws regarding Health Administration or any other state of local agency with authority to investigate claims or charges in any way relating to the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits health of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; and
(iv) there is no misclassification the Office of Federal Contract Compliance or any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar corresponding state or other applicable Law provisionsagency.
Appears in 2 contracts
Samples: Merger Agreement (Cuno Inc), Merger Agreement (3m Co)
Employee Benefit Matters/Employees. (a) Section 4.11(a) of the Company Disclosure Letter sets forth a true, correct and complete list, list as of the date hereof, of this Agreement of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not subject to ERISA), (ii) employment, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth monthbonus, seniority premium, bonus incentive or other incentive compensatory plans, programs, policies or agreements agreements, and (iii) medical, vision, dental or other health plans, life insurance plans, or fringe benefit plans, programs, policies or agreements, in each case, whether oral or writtensponsored, maintained or contributed to by the Company or any of its Subsidiaries, or required to be maintained or contributed to by under which the Company of its Subsidiaries has any material obligation or otherwise providing for payments Liability (including any plans, programs, policies or benefits for agreements that are sponsored by a professional employer organization or to co-employer organization (a “PEO”) under which any current or former employees, directors, officers or consultants employee of the Company is eligible to receive benefits in connection with engagement of a PEO by the Company), excluding (x) any plan or any of its Subsidiaries and/or their dependents, regardless of whether it program that is mandated under local sponsored solely by a Governmental Authority to which the Company contributes pursuant to applicable Law, voluntary(y) any Multiemployer Plan, privateand (z) any employment offer letter or individual independent contractor or consultant agreement that is terminable upon no more than thirty (30) days’ notice with no Liability (or no greater notice period provided as required by applicable Law) and does not provide any retention, fundedchange in control or severance payments or benefits (clauses (i), unfunded(ii) and (iii) collectively, financed by the purchase of insurance, contributory or noncontributory (collectivelybut without reference to whether material, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a) of the Company Disclosure Letter, to the extent applicable, true, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all Plansthe written Plan document, including amendments theretothereto (or, with respect to any Plan sponsored by a PEO, the Plan documentation (or summary thereof) provided to the Company by such PEO with respect to such Plan); (B) the most recent annual report on Form 5500 filed with respect to each Plan (if for which a Form 5500 filing is required by applicable Law) and the most recent actuarial report prepared in respect of any Plan, if applicable; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Plan; and (E) each trust agreement relating any material correspondence with the Department of Labor, IRS or any other Governmental Authority (1) directed or addressed to the Company regarding any Plan that is not sponsored by a PEO or (as applicable); and (F2) all insurance policies purchased to the Knowledge of the Company, directed or addressed to the Company regarding any Plan that is sponsored by or to provide benefits under any Plana PEO.
(b) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, and, and to the Knowledge of the Company, nothing no event has occurred since the date occurred, either by reason of the latest favorable determination letter any action or prototype opinion letter, as applicablefailure to act, that would reasonably be expected to adversely affect the qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Company, each Plan and any related trust complies with, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Planqualification. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Plan and any related trust complies and has been maintained and administered in accordance with its terms and in compliance with ERISA, the Code and other applicable Laws, (ii) all contributions, premiums or payments required to be made with respect to each Plan have been made on or before their due dates and within the applicable time required by the Plan and applicable Law and, to the Knowledge of the Company, nothing has occurred, and no condition exists with respect to any Plan that could result in any Tax, penalty or other Liability of the Company, (iii) to the Knowledge of the Company, no non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Code has occurred involving any Plan and no fiduciary has any Liability for breach of fiduciary duty or any other failure to act or comply with the requirements of ERISA, the Code or any other applicable Laws in connection with the administration or investment of the assets of any Plan, and (iv) other than routine claims for benefits, there are no suits, claims, proceedings, actionsLegal Proceedings, governmental audits or investigations that are pending orpending, or to the Knowledge of the Company, threatened in writing, against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan.
(c) No Plan is None of the Company or any of its ERISA Affiliates has ever sponsored, maintained or contributed to, or been required to maintain or contribute to, or has any actual or contingent Liability in respect of any (i) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA)Multiemployer Plan, (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan is subject to Title IV of ERISA or Section Sections 412 or 430 of the Code, and neither (iii) “multiple employer plan” within the Company nor any meaning of its ERISA Affiliates sponsorsSection 4063 or 4064 of ERISA, maintains or contributes to(iv) “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA, or has, sponsored, maintained or contributed to, a Multiemployer Plan (v) health or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other welfare arrangement that provides benefits on a defined benefit basis in is self-insured by the event of retirement or redundancyCompany.
(d) Except as would not, individually The Company does not have any obligation or any Liability in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Plan provides for respect of any post-retirement or other post-employment welfare benefits (for any current or former employee, officer or director of the Company other than as required by (i) statutory liability for providing group health care continuation coverage as required by Section 4980B of the Code or any similar state law Law (“COBRA”) or ERISAERISA or any other applicable Law, (ii) coverage through the end of the calendar month in which a termination of employment occurs occurs, or an applicable employment agreement or severance agreement, plan or policy (iii) under a Plan listed on Section 4.11(a) of the Company Disclosure Letter requiring the Company to pay or subsidize COBRA premiums for a terminated an employee for up to twenty-four months following (or the employee’s termination)beneficiaries or dependents) following such employee’s termination of employment.
(e) Except as otherwise required under this Agreement or as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): ) (i) entitle any current or former officer, employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; compensation or benefits, (ii) increase the amount of compensation or benefits due to any such current or former officer, employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plan; director, (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards); benefits to any such current or former officer, employee, consultant or director and (iv) cause result in any payments or benefits to any such current or former officer, employee, consultant or director constituting an “excess parachute payment” within the meaning of Section 280G of the Code or otherwise being nondeductible under Section 280G of the Code.
(f) The Company does not have any obligations to gross-up, indemnify or otherwise reimburse any current or former officer, employee, consultant or director for any Tax under Sections 409A of the Code, Section 4999 of the Code or otherwise.
(g) Section 4.11(g) of the Company to transfer Disclosure Letter sets forth a true, correct and complete list of all employees of the Company as of the date hereof, setting forth, on an anonymized basis (i) title or set aside any assets to fund any benefits under any Plan; position, (ii) hire date, (iii) work location, (iv) whether full-time or part-time, (v) limit classification as exempt or restrict non-exempt under the right to amendFair Labor Standards Act, terminate (vi) current annual base compensation rate or transfer wage rate, as applicable, (vii) target annual bonus or other incentive-based compensation opportunity, (vii) leave status (and, if on leave, the assets of any Plan on or following the Closinganticipated return date, if known), and (ix) visa status (if applicable).
(h) All Company Options have (or with respect to such options which have been exercised as As of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as the Knowledge of the date of this AgreementCompany, was) at least equal to the fair market value of a share of Company Common Stock as no employee of the date Company has provided written notice of the option was grantedintent to terminate his or her employment relationship with the Company. No employee of the Company has a principal place of employment outside the United States.
(i) Except as may would not, individually or in the aggregate, reasonably be required by applicable Lawexpected to have a Company Material Adverse Effect, as of the date hereof, (i) the Company is not the subject of any pending or, to the Knowledge of the Company, threatened in writing, Legal Proceeding alleging that the Company has engaged in any unfair labor practice under any Law and (ii) the Company has not experienced any labor strike, dispute, walkout, work stoppage, slowdown, lockout or as contemplated under this Agreementunion organizing activities with respect to employees of the Company. As of the date hereof, the Company does is not have a party to, has no duty to bargain for, and is not currently negotiating any announced plan collective bargaining agreement or legally binding commitment other Contract with a labor organization and there are no labor unions or other organizations representing, purporting to amend or modify represent, or, to the Knowledge of the Company, seeking to represent any existing Planemployee of the Company.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There are no labor unions, works councils or other employee representatives or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries.
(k) Except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employmentlabor and employment and employment practices, including Laws relating to immigration, fair employment practices, terms and conditions of employment, mass layoff, plant closing, disability rights or benefits, discrimination, harassment, retaliation, hours of work, classification of employees, and the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; .
(iik) the Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed and, to To the Knowledge of the Company, no such audit or investigation is in progress; during the three (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, 3)-year period prior to Closingthe date hereof, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification allegations of any individual that renders services sexual harassment or sexual misconduct have been made to the Company who is classified as (A) an independent contractor against any current or other non-employee status, (B) an exempt former employees at the level of Vice President or non-exempt employee above or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the directors. The Company has paid not entered into any settlement agreements related to allegations of sexual harassment or accrued all wages and compensation due to all sexual misconduct by any of it current or former officers, employees, including all overtime pay, vacations consultants or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisionsdirectors.
Appears in 1 contract
Samples: Merger Agreement (Icosavax, Inc.)
Employee Benefit Matters/Employees. (a) Section 4.11(a3.11(a) of the Company Disclosure Letter sets forth a complete list, list as of the date hereof, of this Agreement of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (ERISA, whether or not subject to ERISA), (ii) employment, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plans, programs, policies or agreements and (iii) medical, vision, dental or other health plans, life insurance plans, or fringe benefit plans, programs, policies or agreements, in each case, whether oral or written, maintained or contributed to by the Company or any of its Subsidiaries, or required to be maintained or contributed to by the Company of its Subsidiaries or otherwise providing for payments or benefits for or to any current or former employees, directors, officers or consultants of and under which the Company or any of its Subsidiaries and/or their dependentshas any material obligation or liability, regardless of whether it excluding any plan or program that is mandated under local Law, voluntary, private, funded, unfunded, financed sponsored solely by the purchase of insurance, contributory or noncontributory a Governmental Authority (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a) of the Company Disclosure Letter, to the extent applicable, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all Plans, including amendments thereto; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable Law) and the most recent actuarial report prepared in respect of any Plan, if applicable; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by or to provide benefits under any Plan.
(b) Each Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, status and, to the Knowledge of the Company, nothing has no events have occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to adversely affect the qualification result in disqualification of any such Plan in any way that would reasonably be likely or require corrective action to have a Company Material Adverse Effectthe IRS Employee Plans Compliance Resolution System to maintain such qualification. To the Knowledge of the Company, each Each Plan and any related trust complies with, and has been established, maintained and administered in compliance withwith its terms and all applicable Laws, and qualifies for the expected Tax preferential treatment under, including ERISA, the Code Affordable Care Act and other applicable Lawsthe Code. Except as set forth on Section 4.11(b) As of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effectdate hereof, other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan, or to the Knowledge of the Company, threatened in writing. All payments and/or contributions required to have been made with respect to all Plans either have been timely made or have been accrued in accordance with the terms of the applicable Plan and applicable Law.
(c) No Plan is Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, neither the Company nor any ERISA Affiliate has within the previous six (6) years maintained, contributed to, or been required to or had any liability (whether contingent or otherwise) or obligation with respect to: (i) a any “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), ) (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), ; (ii) any employee benefit plan that is or (iii) another pension plan, including a pension plan was subject to Title IV of ERISA ERISA, Section 302 of ERISA, or Section 412 of the Code, and neither ; (iii) any funded welfare benefit plan within the meaning of Section 419 of the Code; (iv) any “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code); or (v) any “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA). Neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes to, or has, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to has any liability under Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancyERISA.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have be material to the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole, no Plan provides for post-retirement or other post-employment welfare benefits (other than as required by (i) statutory liability for providing group health care continuation coverage as required by Section 4980B of the Code or any similar state law Law (“COBRA”) or ERISAERISA or any other applicable Law, (ii) coverage through the end of the calendar month in which a termination of employment occurs or (iii) under an applicable employment agreement or severance agreement, plan or policy in effect as of the date hereof or established after the date hereof in compliance with this Agreement requiring the Company or any Subsidiary to pay or subsidize COBRA or welfare plan premiums for a terminated employee for up to twenty-four months following or the employee’s beneficiaries following such employee’s termination).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan required under this Agreement or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g3.11(e) of the Company Disclosure Letter, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees(each, consultants or directors a “Service Provider”) to any payment of compensation; (ii) materially increase the amount of compensation or benefits due to any such employee, consultant current or director former Service Provider; or constitute a “deemed severance” or “deemed termination” under any Plan; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards); (iv) cause the Company to transfer any current or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closingformer Service Provider.
(hf) All Neither the Company Options have (nor any of its Subsidiaries is party to, or with respect to such options which have been exercised as otherwise obligated under, any contract, agreement, plan or arrangement that provides for the gross-up of Taxes imposed by Section 409A(a)(1)(B) or Section 4999 of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was grantedCode.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan.
(jg) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters Law, and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries. As of the date hereof, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither neither the Company nor any of its Subsidiaries is a party to or bound by to, nor are there any negotiations currently pending related to, any collective bargaining, works council bargaining agreement or similar agreementlabor Contract, norand there are no labor unions or other organizations representing or, to the Knowledge of the Company, is purporting to represent or attempting to represent any such agreement being negotiated by employee of the Company or any of its Subsidiaries. There are no labor unions, works councils or other employee representatives or organizations representing, orWithout limiting the foregoing, to the Knowledge of the Company purporting to represent there are no employee or attempting to represent, union organizing efforts pending or threatened with respect any employee employee(s) of the Company or any of its Subsidiaries.
(kh) Except, in each case, Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, including Laws relating to discriminationterms and conditions of employment, hours of work, the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, wage payment, wages and hours, classification of workers as independent contractors or employees, classification of employees as exempt or non-exempt for purposes of wage and hour laws, overtime and minimum wage, child labor, paid vacation, paid sick time, leaves of absence, meal breaks and rest periods, pay equity, restrictive covenants, immigration and work authorizations, background checks, employment discrimination, retaliation, whistleblowing, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, prevailing wages, workers’ compensation, labor relations, withholdingcollective bargaining, workplace social welfare obligations and unemployment insurance.
(i) Except as would not, plant closingindividually or in the aggregate, changes in operations and/or pay equity; (ii) the reasonably be expected to have a Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed andMaterial Adverse Effect, to the Knowledge of the Company, no such audit or investigation is in progress; (iii) neither the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, nor any of its Subsidiaries is delinquent in any payments to any of its or their employees or other Service Providers for any wages, occupational safety and healthsalaries, employmentbonuses, promotioncommissions, termination incentives, fees or benefits of all employees, and will timely file, prior other compensation earned or due with respect to Closing, all such reports, information and notices their employment or services or for amounts required by applicable Laws to be given prior reimbursed.
(j) Except as would not, individually or in the aggregate, reasonably be expected to Closing; (iv) have a Company Material Adverse Effect, as of the date hereof, there is no misclassification of any individual that renders services Legal Proceeding or governmental or administrative investigation, audit, inquiry or action pending, or to the Company who is classified as (A) an independent contractor or other non-employee statusKnowledge of the Company, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) threatened against the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations any of its Subsidiaries relating or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state labor or other applicable Law provisionsemployment practices or matters.
Appears in 1 contract
Employee Benefit Matters/Employees. (a) Section 4.11(a3.16(a) of the Company Disclosure Letter Schedule sets forth a complete list, as of the date hereof, list of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not subject to ERISA), (ii) employment, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plans, programs, policies or agreements agreements, and (iii) medical, vision, dental or other health plans, life insurance plans, or fringe benefit plans, programs, policies or agreements, in each case, whether oral or written, sponsored, maintained or contributed to by the Company or any of its Subsidiaries, or required to be sponsored, maintained or contributed to by the Company of or its Subsidiaries or otherwise providing for payments or benefits for or to any current or former employees, directors, officers or consultants of the Company or any of its Subsidiaries and/or their dependents, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory or noncontributory dependents (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a3.16(a) of the Company Disclosure LetterSchedule, to the extent applicable, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all documents embodying such Plans, including amendments thereto; (B) the three most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable Law) and the three most recent actuarial report prepared in respect of any Plan, if applicablePlan that is a single employer pension plan subject to Title IV of ERISA; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Plan; (E) all material correspondence to or from the IRS, the United States Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Body received in the last three years with respect to any Plan; and (F) each trust agreement agreement, insurance contract or other funding vehicle relating to any Plan (as applicable); and (F) all insurance policies purchased by or to provide benefits under any Plan.
(b) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to adversely affect the qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Company, each Plan and any related trust complies with, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Each Plan and any related trust complies, and has been maintained and administered in material compliance, with ERISA, the Code and other applicable Laws. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan.
(c) No Plan is (i) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), ) (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), ) or (iii) another pension plan, including a other pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains maintains, or contributes to, or has, within the past six (6) years, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancyCode.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no No Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or ERISA, or coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s terminationoccurs).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no No Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code or require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) provided by the terms of the Company Disclosure Letterthis Agreement, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): ) (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; , (ii) increase the amount of compensation or benefits due to any such employee, consultant or director director, or constitute a “deemed severance” or “deemed termination” under any Plan; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit benefit.
(other than g) Neither the Company Stock Awards); (iv) cause nor any Subsidiary has any obligation to gross up, indemnify or otherwise reimburse any individual for any additional taxes, interest or penalties incurred pursuant to Section 409A of the Company to transfer or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the ClosingCode.
(h) All No amount has been paid by the Company Options have (or any of its Subsidiaries in connection with respect the Merger, and no amount is expected to such options be paid by the Company or any of its Subsidiaries prior to the Effective Time, which have been exercised as would be subject to the provisions of Section 162(m) of the date Code such that all or a portion of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of payments would not be deductible by the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was grantedpayor.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014within the past three (3) years. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar bargaining agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There and there are no labor unions, works councils unions or other employee representatives or organizations representing, or, to the Knowledge of the Company Company, purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries.
(kj) Except, in each case, Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, including Laws relating to discrimination, hours of work, work and the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed and, to the Knowledge of the Company, no such audit or investigation is in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisions.
Appears in 1 contract
Samples: Merger Agreement (Relypsa Inc)
Employee Benefit Matters/Employees. (a) Section 4.11(a3.11(a) of the Company Disclosure Letter sets forth a complete list, as of the date hereof, list of each material Plan. For purposes of this Agreement, “Plan” shall mean any (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (ERISA, whether or not subject to ERISA), (ii) employment, individual consulting, commission, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick paypaid time off, vacation, thirteenth month, seniority premium, bonus or other incentive plans, programs, policies policies, arrangements or agreements and (iii) medical, vision, dental or other health plansor welfare benefit, life insurance plansinsurance, retiree or post-employment welfare, fringe benefit or other benefit or compensation plans, programs, policies policies, agreements or agreementsarrangements, in each case, whether oral sponsored, maintained, contributed to or written, maintained or required to be contributed to by the Company or any of its Subsidiaries, Subsidiaries and under or required with respect to be maintained or contributed to by the Company of its Subsidiaries or otherwise providing for payments or benefits for or to any current or former employees, directors, officers or consultants of which the Company or any of its Subsidiaries and/or their dependentshas or could reasonably be expected to have any material Liability, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory or noncontributory (collectively, the “Plans”); provided that excluding any governmental plan or program requiring that is sponsored solely by a Governmental Authority to which the mandatory payment Company or any of social insurance taxes its controlled Affiliates or similar contributions Subsidiaries contributes pursuant to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposesapplicable Law. With respect to each of the Plans listed on Section 4.11(a3.11(a) of the Company Disclosure Letter, to the extent applicable, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all Plansthe current Plan and trust document, including amendments theretothereto (and a summary of the material terms of any unwritten Plan); (B) the most recent annual report on Form 5500 filed with respect to each Plan (if for which a Form 5500 filing is required by applicable Law) and the most recent actuarial report prepared in respect of any Plan, if applicable; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notificationadvisory, or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable)all related insurance contracts or other funding arrangements; and (F) all insurance policies purchased by or to provide benefits under any Plan.
(b) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to adversely affect the qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Company, each Plan and any related trust complies with, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability non-routine correspondence with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan.
(c) No Plan is (i) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes to, or has, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancy.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s termination).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plan; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards); (iv) cause the Company to transfer or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closing.
(h) All Company Options have (or with respect to such options which have been exercised as of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was granted.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There are no labor unions, works councils or other employee representatives or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries.
(k) Except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, including Laws relating to discrimination, hours of work, the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for within the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed and, to the Knowledge of the Company, no such audit or investigation is in progress; last three (iii3) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisionsyears.
Appears in 1 contract
Samples: Merger Agreement (Cerevel Therapeutics Holdings, Inc.)
Employee Benefit Matters/Employees. (a) Section 4.11(a4.09(a) of the Company Disclosure Letter sets forth a complete list, as of the date hereof, list of each material Plan. For purposes of this Agreement, the term “Plan” shall mean each (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA), (ii) employment, individual consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, termination protection, transaction bonus, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plansplan, programsprogram, policies policy or agreements agreement, and (iii) medical, vision, dental or other health plansplan, life insurance plansplan, disability or sick leave benefits, relocation benefits, vacation benefits, employee assistance program, prescription or fringe benefit plansplan or post-employment or retirement benefits (including compensation, programspension, policies health, medical or agreementsinsurance benefits), in the case of each caseof clauses (i) through (iii), whether oral or written, maintained sponsored, maintained, administered or contributed to by the any Company or any of its SubsidiariesEntity, or required to be maintained sponsored, maintained, administered or contributed to by the any Company of its Subsidiaries Entity or for which any Company Entity has any direct or indirect liability or otherwise providing for payments or benefits for or to any current or former employees, directors, officers or consultants of the any Company or any of its Subsidiaries Entity and/or their dependents, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory or noncontributory (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a4.09(a) of the Company Disclosure Letter, to the extent applicable, true, correct and complete copies or summaries of the following have been delivered or made available to Parent by the Company: (A) all Plans, including amendments thereto; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable Law) and the most recent actuarial report, financial statement or valuation report prepared in respect of any each Plan, if applicableany; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS Internal Revenue Service determination, notification, notification or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by material correspondence to or to provide benefits under from any Plan.
(b) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to adversely affect the qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Company, each Plan and any related trust complies with, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing Governmental Entity relating to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan.
(c) No Plan is (i) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) maintained outside the jurisdiction of ERISA), (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes to, or has, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancy.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s termination).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plan; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards); (iv) cause the Company to transfer or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closing.
(h) All Company Options have (or with respect to such options which have been exercised as of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was granted.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There are no labor unions, works councils or other employee representatives or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries.
(k) Except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, including Laws relating to discrimination, hours of work, the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed and, to the Knowledge of the Company, no such audit or investigation is in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to or covers any employees or other service providers of any Company Entity who reside or work in outside of the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisions.
Appears in 1 contract
Samples: Merger Agreement (ZS Pharma, Inc.)
Employee Benefit Matters/Employees. (a) Section 4.11(a2.15(a) of the Company Disclosure Letter Schedule sets forth a complete list, as of the date hereof, list of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not subject to ERISA), (ii) employment, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plans, programs, policies or agreements agreements, and (iii) medical, vision, dental or other health plans, life insurance plans, or fringe benefit plans, programs, policies or agreements, in each case, whether oral or written, maintained or contributed to by the Company or any of its Subsidiaries, or required to be maintained or contributed to by the Company of its Subsidiaries or otherwise providing for payments or benefits for or to any current or former employees, directors, officers or consultants of the Company or any of its Subsidiaries and/or or their dependents, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory or noncontributory dependents (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a2.15(a) of the Company Disclosure LetterSchedule, to the extent applicable, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all Plans, including amendments thereto; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable Law) and the most recent actuarial report prepared in respect of any Plan, if applicablePlan that is a single employer pension plan subject to Title IV of ERISA; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, determination or opinion letter, if any, received with respect to any applicable Plan; and (E) each trust agreement relating to any Plan (as applicable); . All grants of Company Stock Options, Company RSUs and Company PSUs were, in all material respects, validly made and properly approved by the Company Board (For a duly authorized committee or subcommittee thereof) in compliance in all insurance policies purchased by material respects, with all applicable Laws and recorded on the consolidated financial statements of the Company in accordance with GAAP, and no such grants of Company Stock Options involved any “back dating” or to provide benefits under any Plansimilar practices.
(b) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to adversely affect the qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Company, each Plan and any related trust complies with, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any PlanImpact. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectImpact, each Plan and any related trust complies, and has been maintained and administered in compliance, with ERISA, the Code and other applicable Laws. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Impact, other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan.
(c) No Plan is is, and neither the Company nor any ERISA Affiliate thereof sponsors, maintains, contributes to, or has in the past six (6) years sponsored, maintained, contributed to, or has any actual or contingent liability with respect to any (i) a “multiemployer plan” (as defined in Section 3(37) single employer plan or 4001(a)(3) of ERISA), (ii) a other pension plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan is subject to Section 302 or Title IV of ERISA or Section 412 of the Code, and neither (ii) “multiple employer plan” within the Company nor any meaning of its ERISA Affiliates sponsors, maintains or contributes to, or has, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 413(c) of the Code Code, (iii) any “multiemployer plan” (within the meaning of Section 3(37) of ERISA) or other applicable Law. No Plan is a defined benefit pension plan or other (iv) multiple employer welfare arrangement that provides benefits on a defined benefit basis in (within the event meaning of retirement or redundancySection 3(4) of ERISA).
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no No Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or Table of Contents ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company or any of its Subsidiaries to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four (24) months following the employee’s termination).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no No Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) provided by the terms of the Company Disclosure Letterthis Agreement, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director director; or constitute a “deemed severance” or “deemed termination” under any Plan; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards); (iv) cause the Company to transfer or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closingbenefit.
(h) All Company Options have (or with respect to such options which have been exercised as of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was granted.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan.
(jg) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectImpact, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters Law, and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. within the past three (3) years.
(h) Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar bargaining agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There and there are no labor unions, works councils unions or other employee representatives or organizations representing, or, to the Knowledge of the Company Company, purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries.
(ki) Except, in each case, Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectImpact, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, including Laws relating to discrimination, collective bargaining, unemployment insurance, workers’ compensation, equal employment opportunity, classification of employees and independent contractors, the payment withholding of Taxes, hours of work, work and the payment of wages or overtime wages, contractual obligations, consultation with employees, use wages and the termination of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed and, to the Knowledge of the Company, no such audit or investigation is in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of including any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties obligations pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisionslocal Laws.
(j) Each “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) maintained or sponsored by the Company or any of its Subsidiaries has been operated in material compliance with Section 409A of the Code and the guidance issued thereunder. No Company Benefit Plan provides for any gross-up, reimbursement or additional payment by reason of any Tax imposed under Section 409A or Section 4999 of the Code.
(k) No executive officer of the Company or any of its Subsidiaries has notified the Company or such Subsidiary in writing that such executive officer intends to leave the Company or any such Subsidiary or otherwise terminate such executive officer’s employment with the Company or such Subsidiary in connection with the consummation of the Merger or within 60 days following the Closing Date.
Appears in 1 contract
Employee Benefit Matters/Employees. (a) Section 4.11(a4.12(a) of the Company Disclosure Letter sets forth a true, correct and complete list, as of the date hereof, list of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not subject to ERISA), and (ii) employment, independent contractor, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth monthbonus, seniority premiumincentive, bonus or other incentive plansdisability, programs, policies or agreements and (iii) medical, vision, dental dental, health, life insurance, fringe benefit or other health planscompensation or benefit plan, life insurance plansprogram, agreement, arrangement policy, trust, fund or fringe benefit planscontract, programs, policies whether written or agreementsunwritten, in each case, whether oral or writtensponsored, maintained or contributed to, or required to be sponsored, maintained or contributed to, by the Company or any of its Subsidiaries, or required to be maintained or contributed to by the Company of its Subsidiaries or otherwise providing for payments any of their ERISA Affiliates or benefits for or with respect to any current or former employees, directors, officers or consultants of which the Company or any of its Subsidiaries and/or their dependentsmay have any obligation or liability, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory actual or noncontributory contingent (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a) of the Company Disclosure Lettermaterial Plans, to the extent applicable, correct and complete copies or summaries of the following have been made available to Parent by the Company: (A) all Plans, including amendments thereto, or a written summary in the case of any unwritten Plan; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if for which a Form 5500 filing is required by applicable Law) and the most recent actuarial report prepared in respect of any Plan, if applicable; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Plan; and (E) each any related material Contracts, including trust agreement relating to any Plan (as applicable); agreements, insurance contracts, and (F) all insurance policies purchased by or to provide benefits under any Planadministrative services agreements.
(b) Each Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, status and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter there are no facts or prototype opinion letter, as applicable, circumstances that would could reasonably be expected to adversely affect such qualification or cause the qualification imposition of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To liability, penalty or Tax under ERISA, the Knowledge of the CompanyCode or other applicable Laws, (ii) each Plan and any related trust complies with, and has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, with ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b, (iii) the Company, each of its Subsidiaries and, to the Knowledge of the Company Disclosure Letter or Company, all fiduciaries of a Plan are and at all times have been in the Financial Statements, each Plan is fully funded compliance with all Laws relating to the extent required by applicable Laws or applicable agreements, Plans and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or provision of compensation and benefits and (iv) as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in of the aggregate, reasonably be expected to have a Company Material Adverse Effect, other than routine claims for benefitsdate hereof, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending orpending, or to the Knowledge of the Company, threatened threatened, against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan.
(c) No Plan is is, and the Company and its ERISA Affiliates have not in the last ten (i10) years contributed to, a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes to, or has, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancyCode.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no No Plan provides for post-retirement or other post-employment health or welfare benefits (benefits, other than as required by (i) health care continuation coverage as required by Section 4980B of the Code or any similar state law Law (“COBRA”) or ERISA, (ii) coverage through the end of the calendar month in which a termination of employment occurs or (iii) under an applicable employment agreement or severance agreement, plan or policy set forth on Section 4.12(a) of the Company Disclosure Letter requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following or the employee’s beneficiaries for a period of twelve (12) or fewer months following such employee’s termination).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed required under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letterthis Agreement, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent eventsevents that would not by itself): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries (each, a “Participant”) or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plandirector; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit benefit; or (iv) result in the payment of any amount or any benefits that would, individually or in combination with any other such payment or benefits, constitute an “excess parachute payment”, as defined in 280G(b)(1) of the Code, to any Participant.
(f) No Participant is entitled to any gross-up, make-whole or other additional payment from the Company or any other Person in respect of any Tax (including Federal, state, provincial, territorial, municipal, local and non-U.S. income, excise and other Taxes (including Taxes imposed under Section 4999 or 409A of the Code)) or interest or penalty related thereto.
(g) No Plan is maintained outside the jurisdiction of the United States, is by its terms governed by the Laws of any jurisdiction other than the Company Stock Awards); (iv) cause United States or provides compensation or benefits to Participants providing services primarily outside of the United States. Neither the Company to transfer nor any of its Subsidiaries has (i) applied for or set aside received any assets to fund any benefits loan under any Plan; the Paycheck Protection Program under the CARES Act or (vii) limit deferred any Taxes under Section 2302 of the CARES Act or restrict claimed any Tax credit under Section 2301 of the right to amend, terminate CARES Act or transfer Sections 7001-7003 of the assets of any Plan on or following the ClosingFFCRA.
(h) All The Company Options have (or with respect has made available to such options which have been exercised Parent a list of all employees of the Company and its Subsidiaries that is true, complete and correct in all material respects as of August 8, 2020, including for each such employee, to the extent applicable: (i) name, position or job title, date of this Agreementhire and work location; (ii) base salary and target annual bonus amount; (iii) part-time, hadfull-time or temporary status; and (iv) whether such employee is subject to a per share exercise price that is (or with respect restrictive covenant agreement and the applicable form of such agreement, which form has been made available to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was grantedParent.
(i) Except as may be required by applicable Neither the Company nor any of its Subsidiaries is the subject of any ongoing or pending proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law. There is no ongoing, pending, or as contemplated under this Agreementto the Knowledge of the Company, threatened, (A) labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company does not have or any announced plan of its Subsidiaries or legally binding commitment (B) effort to amend organize or modify represent the labor force of the Company or any existing Planof its Subsidiaries. As of the date hereof, neither the Company nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement, and there are no labor unions or other organizations representing any employee of the Company or any of its Subsidiaries.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, employment practices or labor relations, including Laws relating to discrimination, hours of work, the subject classification of any pending or, to service providers and the Knowledge payment of the Company, threatened proceeding alleging that the Company wages or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There are no labor unions, works councils or other employee representatives or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiariesovertime wages.
(k) Except, in each case, Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employmentno investigation, including Laws relating to discriminationreview, hours of work, the payment of wages complaint or overtime wages, contractual obligations, consultation with employees, use of temporary proceeding by or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of before any Governmental Authority responsible for the enforcement of labor or employment Laws with respect to conduct an audit or investigation of the Company or any Subsidiary that has not been completed andof its Subsidiaries in relation to the employment or alleged employment of any individual is ongoing or, to the Knowledge of the Company, no such audit pending or investigation is in progress; (iii) threatened, nor has the Company has filed all reportsor any of the Company Subsidiaries received any written notice indicating an intention to conduct the same.
(l) Since January 1, information 2018, the Company and notices required under applicable Laws regarding its Subsidiaries have not received, been involved in or been subject to any Legal Proceedings or any other material complaints, claims or actions alleging sexual harassment, sexual misconduct, bullying or discrimination committed by any director, officer or other managerial employee of the hiring, hours, wages, occupational safety and health, employment, promotion, termination Company or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there any Company Subsidiary or alleging a workplace culture that encourages or is no misclassification of any individual that renders services conducive to the foregoing.
(m) Except as would not, individually or in the aggregate, reasonably be expected to have to a Company who is classified as (A) an independent contractor or other non-employee statusMaterial Adverse Effect, (Bi) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employeeseach Company Option, the per share exercise price was equal to the fair market value (within the meaning of Section 409A of the Code) of a Company Share on the date of grant and all employees who are performing services for (ii) each Company Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies. Each Company Option, Company RSU Award and the Company ESPP may by its terms be treated at the Effective Time as set forth in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisionsSection 3.7.
Appears in 1 contract
Employee Benefit Matters/Employees. (a) Section 4.11(aSection 4.09(a) of the Company Disclosure Letter sets forth a complete list, as of the date hereof, list of each material Plan. For purposes of this Agreement, the term “Plan” shall mean each (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA), (ii) employment, individual consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, termination protection, transaction bonus, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plansplan, programsprogram, policies policy or agreements agreement, and (iii) medical, vision, dental or other health plansplan, life insurance plansplan, disability or sick leave benefits, relocation benefits, vacation benefits, employee assistance program, prescription or fringe benefit plansplan or post-employment or retirement benefits (including compensation, programspension, policies health, medical or agreementsinsurance benefits), in the case of each caseof clauses (i) through (iii), whether oral or written, maintained sponsored, maintained, administered or contributed to by the any Company or any of its SubsidiariesEntity, or required to be maintained sponsored, maintained, administered or contributed to by the any Company of its Subsidiaries Entity or for which any Company Entity has any direct or indirect liability or otherwise providing for payments or benefits for or to any current or former employees, directors, officers or consultants of the any Company or any of its Subsidiaries Entity and/or their dependents, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory or noncontributory (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(aSection 4.09(a) of the Company Disclosure Letter, to the extent applicable, true, correct and complete copies or summaries of the following have been delivered or made available to Parent by the Company: (A) all Plans, including amendments thereto; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable Law) and the most recent actuarial report, financial statement or valuation report prepared in respect of any each Plan, if applicableany; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS Internal Revenue Service determination, notification, notification or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by material correspondence to or to provide benefits under from any Plan.
(b) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to adversely affect the qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Company, each Plan and any related trust complies with, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing Governmental Entity relating to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan.
(c) No Plan is (i) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) maintained outside the jurisdiction of ERISA), (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes to, or has, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancy.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s termination).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plan; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards); (iv) cause the Company to transfer or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closing.
(h) All Company Options have (or with respect to such options which have been exercised as of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was granted.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There are no labor unions, works councils or other employee representatives or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries.
(k) Except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, including Laws relating to discrimination, hours of work, the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed and, to the Knowledge of the Company, no such audit or investigation is in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to or covers any employees or other service providers of any Company Entity who reside or work in outside of the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisions.
Appears in 1 contract
Samples: Merger Agreement (Zeneca, Inc.)
Employee Benefit Matters/Employees. (a) Section 4.11(a4.09(a) of the Company Disclosure Letter sets forth a complete list, as of the date hereof, list of each material Plan. For purposes of this Agreement, the term “Plan” shall mean each (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA), (ii) employment, consulting, pension, retirement, superannuation, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plansplan, programsprogram, policies policy or agreements agreement, and (iii) medical, vision, dental or other health plansplan, life insurance plansplan, or fringe benefit plans, programs, policies or agreementsplan, in the case of each caseof clauses (i) through (iii), whether oral or written, maintained or contributed to by the Company or any of its Subsidiaries, or required to be maintained or contributed to by the Company or any of its Subsidiaries or otherwise providing for payments or benefits for or to any current or former employees, directors, officers or consultants of the Company or any of its Subsidiaries and/or their dependents, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by the purchase of insurance, contributory or noncontributory (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a4.09(a) of the Company Disclosure Letter, to the extent applicable, true, correct and complete copies or summaries of the following have been delivered or made available to Parent by the Company: (A) all Plans, including amendments thereto; (B) the most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable Law) and the most recent actuarial report, financial statement or valuation report prepared in respect of any each Plan, if applicableany; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS Internal Revenue Service determination, notification, notification or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by material correspondence to or from any Governmental Entity relating to provide benefits under any Plan.
(b) Each Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter from the IRS as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or prototype opinion letter, as applicable, that would reasonably be expected to adversely affect the qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Company, each Plan and any related trust complies with, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to the Plans, or asserting any rights to or claims for benefits under any Plan.
(c) No Plan is (i) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes to, or has, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancy.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s termination).
(e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events): (i) entitle any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries or any group of such employees, consultants or directors to any payment of compensation; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director or constitute a “deemed severance” or “deemed termination” under any Plan; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit (other than the Company Stock Awards); (iv) cause the Company to transfer or set aside any assets to fund any benefits under any Plan; or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closing.
(h) All Company Options have (or with respect to such options which have been exercised as of the date of this Agreement, had) a per share exercise price that is (or with respect to such options which have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was granted.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, the Company does not have any announced plan or legally binding commitment to amend or modify any existing Plan.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law or has violated any Law pertaining to labor relations or employment matters and (ii) there is no pending or, to the Knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1, 2014. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining, works council or similar agreement, nor, to the Knowledge of the Company, is any such agreement being negotiated by the Company or any of its Subsidiaries. There are no labor unions, works councils or other employee representatives or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries.
(k) Except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries is in compliance with all applicable Laws relating to employment, including Laws relating to discrimination, hours of work, the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an audit or investigation of the Company or any Subsidiary that has not been completed and, to the Knowledge of the Company, no such audit or investigation is in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification Act of 1988 and any similar state or other applicable Law provisions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Durata Therapeutics, Inc.)
Employee Benefit Matters/Employees. (a) Section 4.11(a3.09(a) of the Company Disclosure Letter sets forth contains a true, correct and complete list, as of the date hereof, list of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not subject to ERISA), (ii) employment, consultingbonus, pension, retirement, superannuation, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock or other equity-based, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other employee benefit plan, program, arrangement, agreement, fund or commitment, including any “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each employment, retention, consulting, change in control, retentiontermination or severance plan, equity program, arrangement or equity-based compensationagreement entered into, stock purchasemaintained, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plans, programs, policies or agreements and (iii) medical, vision, dental or other health plans, life insurance plans, or fringe benefit plans, programs, policies or agreements, in each case, whether oral or written, maintained sponsored or contributed to by the Company or any of its Subsidiaries, Subsidiaries or required to be maintained or contributed to by which the Company or any of its Subsidiaries has any obligation to contribute or otherwise providing for payments any other liability (the “Plans”). Prior to the date hereof, the Company has provided or benefits for made available to Parent true, correct and complete copies of each of the following, as applicable, with respect to each Plan: (i) the plan document or agreement (or if the Plan is not a written Plan, a description thereof); (ii) the trust agreement, insurance contract or other documentation of any related funding arrangement; (iii) the summary plan description; (iv) the two most recent annual reports, actuarial reports and/or financial reports; (v) the most recent required Internal Revenue Service Form 5500, including all schedules thereto; (vi) any material written communication to or from any Governmental Entity made within the past three years; (vii) all amendments or modifications to any current such documents; and (viii) the most recent determination letter received from the Internal Revenue Service with respect to each Plan that is intended to be a “qualified plan” under Section 401 of the Code.
(b) With respect to each Plan, (i) all payments due from the Company or former employees, directors, officers or consultants any of its Subsidiaries to date have been timely made and all amounts properly accrued to date as liabilities of the Company or any of its Subsidiaries and/or their dependents, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by which have not been paid are properly recorded on the purchase of insurance, contributory or noncontributory (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a) books of the Company Disclosure Letterand, to the extent applicablerequired by GAAP, correct and complete copies or summaries adequate reserves are reflected on the financial statements of the following have been made available to Parent by Company or liability thereof was incurred in the Company: ordinary course of business consistent with past practice since December 31, 2007, (Aii) all Plans, including amendments thereto; each such Plan which is an “employee pension benefit plan” (Bas defined in Section 3(2) the most recent annual report on Form 5500 filed with respect to each Plan (if required by applicable Lawof ERISA) and the most recent actuarial report prepared in respect of any Plan, if applicable; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by or to provide benefits under any Plan.
(b) Each Plan that is intended to be qualified qualify under Section 401(a) 401 of the Code either has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter Internal Revenue Service with respect to such qualification, its related trust has been determined to be exempt from the IRS as to its qualified status, and, to the Knowledge taxation under Section 501(a) of the CompanyCode, and nothing has occurred since the date of the latest favorable determination such letter that has or prototype opinion letter, as applicable, that would reasonably be expected is likely to adversely affect the such qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Companyor exemption, each Plan and any related trust complies with(iii) there are no actions, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter suits or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, claims pending (other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending ) or, to the Knowledge knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to such Plan or against the Plansassets of such Plan and (iv) it has been operated and administered in compliance with its terms and all applicable Laws and regulations, or asserting any rights to or claims for benefits under any Planincluding ERISA and the Code, in all material respects.
(c) No Plan is Neither the Company nor any trade or business, whether or not incorporated (an “ERISA Affiliate”), which together with the Company would be deemed to be a “single employer” within the meaning of Section 4001(b) of ERISA, has incurred any material unpaid liability pursuant to Title IV or Section 302 of ERISA or Section 412 of the Code and to the knowledge of Company no condition exists that could cause the Company or any ERISA Affiliate of the Company to incur any such liability (other than liability for benefits or premiums payable to the Pension Benefit Guaranty Corporation (“PBGC”) arising in the ordinary course that are not yet due), or after the Effective Time, Parent or any of its Affiliates.
(d) With respect to each “employee pension benefit plan” (as defined in Section 3(2) of ERISA) as to which the Company or any of its Subsidiaries may incur any liability under Section 302 or Title IV of ERISA or Section 412 of the Code: (i) no such plan is a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA) or a “multiple employer plan” (as defined in Section 413 of the Code), ; (ii) a plan to the knowledge of the Company, no condition or event currently exists that has two would reasonably be expected to result, directly or more contributing sponsors at least two indirectly, in any material liability of whom are not the Company or any of its Subsidiaries under common controlTitle IV of ERISA, within whether to the meaning PBGC or otherwise, on account of Section 4063 the termination of ERISA (together, a “Multiemployer Plan”), or any such plan; and (iii) another pension plan, including a pension no such plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor has incurred any of its ERISA Affiliates sponsors, maintains or contributes to, or has, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or “accumulated funding deficiency” (as defined in Section 412 of the Code or other applicable Law. No Part 3 of Title I of ERISA), whether or not waived
(e) To the knowledge of the Company, no Plan is a defined benefit pension plan under audit or is subject of an investigation by the Internal Revenue Service, the U.S. Department of Labor, the SEC, the PBGC or any other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancyGovernmental Entity.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s termination).
(ef) Except as set forth in on Section 4.11(e3.09(a) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company or delivery of this Agreement nor the consummation of the transactions contemplated hereby will (by this Agreement will, either alone or upon occurrence of in conjunction with any additional other event (whether contingent or subsequent events): otherwise), (i) entitle result in any current payment or former employeebenefit becoming due or payable, officeror required to be provided, consultant to any director, employee or director independent contractor of the Company or any of its Subsidiaries or any group of such employeesSubsidiaries, consultants or directors to any payment of compensation; (ii) increase the amount or value of any benefit or compensation otherwise payable or benefits due required to be provided to any such employeedirector, consultant employee or director or constitute a “deemed severance” or “deemed termination” under any Plan; independent contractor, (iii) accelerate result in the vesting, funding or acceleration of the time of payment payment, vesting or funding of any compensation, equity award such benefit or other benefit (other than the Company Stock Awards); compensation or (iv) cause result in any amount to fail to be deductible by reason of Section 280G or Section 162(m) of the Code.
(g) Except as disclosed in the financial statements contained in Company SEC Filings filed prior to the date hereof, with respect to each Plan that is a “welfare plan” (as defined in Section 3(1) of ERISA), neither the Company nor any of its Subsidiaries has any liability with respect to transfer an obligation to provide welfare benefits, including death or set aside medical benefits (whether or not insured) with respect to any assets to fund any Person beyond their retirement or other termination of service other than coverage mandated by Section 4980B of the Code or state Law (or other Law) or disability benefits under any Plan; employee welfare plan that have been fully provided for by insurance or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closingotherwise.
(h) All Company Options have (or with With respect to such options which each Plan that is funded wholly or partially through an insurance policy, all premiums required to have been exercised as of paid to date under the date of this Agreement, had) a per share exercise price that is (or with respect to such options which insurance policy have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was grantedpaid.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, Neither the Company does nor any of its Subsidiaries has disseminated to any current or former employee or any individual who is likely to become an employee in writing any intent or commitment (whether or not have legally binding) to create or implement any announced additional employee benefit plan or legally binding commitment to amend amend, modify or modify terminate any existing PlanPlan of the Company, except for immaterial amendments to any Plan of the Company that will not result in an increase in the annual costs in respect of such plan incurred or to be incurred by the Company or any of its Subsidiaries.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither Neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law Law. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement, and there are no labor unions or has violated other organizations representing, purporting to represent or attempting to represent, any Law pertaining to labor relations employee of the Company or employment matters and (ii) there any of its Subsidiaries. There is no pending or, to the Knowledge knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1within the past five years.
(k) As of the close of business on the third Business Day immediately preceding the date hereof, 2014no current employee has given written notice to the Company or any of its Subsidiaries of his or her intent to terminate employment with the Company or such Subsidiary.
(l) With respect to each open workers compensation claim involving an employee of the Company or any of its Subsidiaries, the Company has provided to Parent, prior to the date hereof, the name, date of injury, payments made to date, current reserve by payment type (e.g., indemnity and medical expense), description of injury and location of employee. Neither To the knowledge of the Company, no circumstances exist that are reasonably likely to result in any other workers compensation claims against the Company or any of its Subsidiaries.
(m) The Company and each of its Subsidiaries is in material compliance with all applicable local, state, federal and foreign Laws relating to employment, including, without limitation, Laws relating to discrimination, hours of work and the payment of wages or overtime wages. There are no complaints, lawsuits or other proceedings pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries brought by or on behalf of any applicant for employment, any current or former employee or any class of the foregoing, relating to any such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment, or alleging any other discriminatory, wrongful or tortuous conduct in connection with the employment relationship.
(n) There are no pending or, to the knowledge of the Company, threatened material investigations, audits, complaints or proceedings against the Company or any of its Subsidiaries by or before any Governmental Entity involving any applicant for employment, any current or former employee or any class of the foregoing, including, without limitation:
(i) the Equal Employment Opportunity Commission or any other state or local agency with authority to investigate claims or charges of employment discrimination in the workplace;
(ii) the United States Department of Labor or any other state or local agency with authority to investigate claims or charges in any way relating to hours of employment or wages;
(iii) the Occupational Safety and Health Administration or any other state of local agency with authority to investigate claims or charges in any way relating to the safety and health of employees; and
(iv) the Office of Federal Contract Compliance or any corresponding state agency.
(o) In the three (3) years prior to the date hereof, neither the Company nor any of its Subsidiaries is has effectuated (i) a party to “plant closing” (as defined in the Worker Adjustment and Retraining Notification Act (the “WARN Act”) or bound by any collective bargaining, works council similar Law) affecting any site of employment or similar agreement, nor, to the Knowledge one or more facilities or operating units within any site of the Company, is any such agreement being negotiated by employment or facility of the Company or any of its Subsidiaries. There are no labor unionsSubsidiaries or (ii) a “mass layoff” (as defined in the WARN Act, works councils or other employee representatives any similar Law) affecting any site of employment or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee facility of the Company or any of its Subsidiaries.
(kp) Except, in each case, as would not, individually or in Each Plan that is a “nonqualified deferred compensation plan” within the aggregate, reasonably be expected meaning of Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) subject to have a Company Material Adverse Effect, (i) Section 409A of the Company and each of its Subsidiaries is Code has been operated in compliance with all applicable Laws relating to employmentSection 409A of the Code since January 1, including Laws relating to discrimination2005, hours based upon a good faith, reasonable interpretation of workSection 409A of the Code and the notices, regulations, and other guidance of general applicability issued thereunder (together, the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice “409A Authorities”). No Plan that would be a Nonqualified Deferred Compensation Plan subject to Section 409A of the intent of any Governmental Authority responsible Code but for the enforcement of labor or employment Laws effective date provisions that are applicable to conduct an audit or investigation Section 409A of the Company or any Subsidiary that has not been completed andCode, to the Knowledge of the Company, no such audit or investigation is as set forth in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A885(d) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification American Jobs Creation Act of 1988 2004, as amended (the “AJCA”), has been “materially modified” within the meaning of Section 885(d)(2)(B) of the AJCA after October 3, 2004, based upon a good faith reasonable interpretation of the AJCA and any similar state or other applicable Law provisionsthe 409A Authorities.
Appears in 1 contract
Employee Benefit Matters/Employees. (a) Section 4.11(a3.09(a) of the Company Disclosure Letter sets forth contains a true, correct and complete list, as of the date hereof, list of each material (i) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not subject to ERISA), (ii) employment, consultingbonus, pension, retirement, superannuation, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock or other equity-based, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other employee benefit plan, program, arrangement, agreement, fund or commitment, including any “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and each employment, retention, consulting, change in control, retentiontermination or severance plan, equity program, arrangement or equity-based compensationagreement entered into, stock purchasemaintained, employee stock ownership, severance pay, termination indemnity, redundancy pay, sick pay, vacation, thirteenth month, seniority premium, bonus or other incentive plans, programs, policies or agreements and (iii) medical, vision, dental or other health plans, life insurance plans, or fringe benefit plans, programs, policies or agreements, in each case, whether oral or written, maintained sponsored or contributed to by the Company or any of its Subsidiaries, Subsidiaries or required to be maintained or contributed to by which the Company or any of its Subsidiaries has any obligation to contribute or otherwise providing for payments any other liability (the “Plans”). Prior to the date hereof, the Company has provided or benefits for made available to Parent true, correct and complete copies of each of the following, as applicable, with respect to each Plan: (i) the plan document or agreement (or if the Plan is not a written Plan, a description thereof); (ii) the trust agreement, insurance contract or other documentation of any related funding arrangement; (iii) the summary plan description;
(iv) the two most recent annual reports, actuarial reports and/or financial reports; (v) the most recent required Internal Revenue Service Form 5500, including all schedules thereto; (vi) any material written communication to or from any Governmental Entity made within the past three years; (vii) all amendments or modifications to any current such documents; and (viii) the most recent determination letter received from the Internal Revenue Service with respect to each Plan that is intended to be a “qualified plan” under Section 401 of the Code.
(b) With respect to each Plan, (i) all payments due from the Company or former employees, directors, officers or consultants any of its Subsidiaries to date have been timely made and all liabilities of the Company or any of its Subsidiaries and/or their dependents, regardless of whether it is mandated under local Law, voluntary, private, funded, unfunded, financed by which have not been paid are properly recorded on the purchase of insurance, contributory or noncontributory (collectively, the “Plans”); provided that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee will not be considered a “Plan” for these purposes. With respect to the Plans listed on Section 4.11(a) books of the Company Disclosure Letterand, to the extent applicablerequired by GAAP, correct and complete copies or summaries adequate reserves are reflected on the financial statements of the following have been made available to Parent by Company (except for such liabilities incurred in the ordinary course of business consistent with past practice since the date of the Company: (A) all Plans, including amendments thereto; (B) the ’s most recent annual report on Form 5500 filed with respect to financial statements), (ii) each such Plan which is an “employee pension benefit plan” (if required by applicable Lawas defined in Section 3(2) of ERISA) and the most recent actuarial report prepared in respect of any Plan, if applicable; (C) the most recent summary plan description for each Plan for which a summary plan description is required by applicable Law and all related summaries of material modifications; (D) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Plan; (E) each trust agreement relating to any Plan (as applicable); and (F) all insurance policies purchased by or to provide benefits under any Plan.
(b) Each Plan that is intended to be qualified qualify under Section 401(a) 401 of the Code either utilizes a prototype plan document for which the sponsor of the prototype document has received a favorable opinion letter from the Internal Revenue Service approving the prototype document or has received a favorable determination letter from the IRS or may rely upon a favorable prototype opinion letter Internal Revenue Service with respect to such qualification, its related trust has been determined to be exempt from the IRS as to its qualified status, and, to the Knowledge taxation under Section 501(a) of the CompanyCode, and nothing has occurred since the date of the latest favorable determination such letter that has or prototype opinion letter, as applicable, that would reasonably be expected is likely to adversely affect the such qualification of any such Plan in any way that would reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Companyor exemption, each Plan and any related trust complies with(iii) there are no actions, has been maintained and administered in compliance with, and qualifies for the expected Tax preferential treatment under, ERISA, the Code and other applicable Laws. Except as set forth on Section 4.11(b) of the Company Disclosure Letter suits or in the Financial Statements, each Plan is fully funded to the extent required by applicable Laws or applicable agreements, and neither the Company nor its Subsidiaries has, or is reasonably expected to have, any undisclosed material liability with respect to, or as a result of, offering, sponsoring, maintaining or contributing to any Plan. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, claims pending (other than routine claims for benefits, there are no suits, claims, proceedings, actions, governmental audits or investigations that are pending ) or, to the Knowledge knowledge of the Company, threatened against or involving any Plan or any fiduciaries thereof with respect to their duties to such Plan or against the Plansassets of such Plan and (iv) it has been operated and administered in compliance with its terms and all applicable Laws and regulations, or asserting any rights to or claims for benefits under any Planincluding ERISA and the Code, in all material respects.
(c) No Plan is Neither the Company nor any trade or business, whether or not incorporated (an “ERISA Affiliate”), which together with the Company would be deemed to be a “single employer” within the meaning of Section 4001(b) of ERISA, has incurred any material unpaid liability pursuant to Title IV or Section 302 of ERISA or Section 412 of the Code and to the knowledge of the Company no condition exists that could cause the Company or any ERISA Affiliate of the Company, or after the Effective Time, Parent or any of its Affiliates, to incur any such liability (other than liability for benefits or premiums payable to the Pension Benefit Guaranty Corporation (“PBGC”) arising in the ordinary course that are not yet due).
(d) With respect to each “employee pension benefit plan” (as defined in Section 3(2) of ERISA) as to which the Company or any of its Subsidiaries may incur any liability under Section 302 or Title IV of ERISA or Section 412 of the Code: (i) no such plan is a “multiemployer plan” (as defined in Section 3(37) of ERISA) or 4001(a)(3a “multiple employer plan” (as defined in Section 413 of the Code); (ii) to the knowledge of the Company, no condition or event currently exists that would reasonably be expected to result, directly or indirectly, in any material liability of the Company or any of its Subsidiaries under Title IV of ERISA, whether to the PBGC or otherwise, on account of the termination of any such plan; (iii) no such plan has incurred any “accumulated funding deficiency” (as defined in Section 412 of the Code or Part 3 of Title I of ERISA), whether or not waived; and (iiiv) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (together, a “Multiemployer Plan”), or (iii) another pension plan, including a pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes toSubsidiaries has provided, or hasis required to provide, sponsored, maintained or contributed to, a Multiemployer Plan or other pension security to any such plan subject pursuant to Title IV of ERISA or Section 412 401(a)(29) of the Code or other applicable Law. No Plan is a defined benefit pension plan or other arrangement that provides benefits on a defined benefit basis in the event of retirement or redundancy.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Plan provides for post-retirement or other post-employment welfare benefits (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law (“COBRA”) or ERISA, coverage through the end of the calendar month in which a termination of employment occurs or an applicable employment agreement or severance agreement, plan or policy requiring the Company to pay or subsidize COBRA premiums for a terminated employee for up to twenty-four months following the employee’s termination)Code.
(e) To the knowledge of the Company, no Plan is under audit or is subject of an investigation by the Internal Revenue Service, the U.S. Department of Labor, the SEC, the PBGC or any other Governmental Entity.
(f) Except as set forth in Section 4.11(e3.09(f) of the Company Disclosure Letter, no Plan or other agreement or Contract between the Company and an employee or other individual would reasonably be expected to result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(f) Neither the Company nor any of its Subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of foreign, state or local Law relating to Tax).
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, neither the execution by the Company or delivery of this Agreement nor the consummation of the transactions contemplated hereby will (by this Agreement will, either alone or upon occurrence of in conjunction with any additional other event (whether contingent or subsequent events): otherwise), (i) entitle result in any current payment or former employeebenefit becoming due or payable, officeror required to be provided, consultant to any director, employee or director independent contractor of the Company or any of its Subsidiaries or any group of such employeesSubsidiaries, consultants or directors to any payment of compensation; (ii) increase the amount or value of any benefit or compensation otherwise payable or benefits due required to be provided to any such employeedirector, consultant employee or director or constitute a “deemed severance” or “deemed termination” under any Plan; independent contractor, (iii) accelerate result in the vesting, funding or acceleration of the time of payment payment, vesting or funding of any compensation, equity award such benefit or other benefit (other than the Company Stock Awards); compensation or (iv) cause result in any amount to fail to be deductible by reason of Section 280G or Section 162(m) of the Code.
(g) Except as disclosed in the financial statements contained in Company SEC Filings filed prior to the date hereof, with respect to each Plan that is a “welfare plan” (as defined in Section 3(1) of ERISA), neither the Company nor any of its Subsidiaries has any liability with respect to transfer an obligation to provide welfare benefits, including death or set aside medical benefits (whether or not insured) with respect to any assets to fund any Person beyond their retirement or other termination of service other than coverage mandated by Section 4980B of the Code or state Law (or other Law) or disability benefits under any Plan; employee welfare plan that have been fully provided for by insurance or (v) limit or restrict the right to amend, terminate or transfer the assets of any Plan on or following the Closingotherwise.
(h) All Company Options have (or with With respect to such options which each Plan that is funded wholly or partially through an insurance policy, all premiums required to have been exercised as of paid to date under the date of this Agreement, had) a per share exercise price that is (or with respect to such options which insurance policy have been exercised as of the date of this Agreement, was) at least equal to the fair market value of a share of Company Common Stock as of the date the option was grantedpaid.
(i) Except as may be required by applicable Law, or as contemplated under this Agreement, Neither the Company does nor any of its Subsidiaries has disseminated to any current or former employee or any individual who is likely to become an employee any intent or commitment (whether or not have legally binding) to create or implement any announced additional employee benefit plan or legally binding commitment to amend amend, modify or modify terminate any existing PlanPlan of the Company, except for immaterial amendments to any Plan of the Company that will not result in an increase in the annual costs in respect of such plan incurred or to be incurred by the Company or any of its Subsidiaries.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither Neither the Company nor any of its Subsidiaries is the subject of any pending or, to the Knowledge knowledge of the Company, threatened proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice under any Law Law. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement, and there are no labor unions or has violated other organizations representing, purporting to represent or attempting to represent, any Law pertaining to labor relations employee of the Company or employment matters and (ii) there any of its Subsidiaries. There is no pending or, to the Knowledge knowledge of the Company, threatened labor strike, dispute, walkout, work stoppage, slowdown or lockout with respect to employees of the Company or any of its Subsidiaries, and no such strike, dispute, walkout, slowdown or lockout has occurred since January 1within the past five years.
(k) As of the close of business on the third Business Day immediately preceding the date hereof, 2014no current employee having annual total compensation of more than $100,000 has given written notice to the Company or any of its Subsidiaries of his or her intent to terminate employment with the Company or such Subsidiary.
(l) With respect to each open workers compensation claim exceeding $25,000 involving an employee of the Company or any of its Subsidiaries, the Company has provided to Parent, prior to the date hereof, the name, date of injury, payments made to date, current reserve by payment type (e.g., indemnity and medical expense), description of injury and location of employee. Neither To the knowledge of the Company, no circumstances exist that are reasonably likely to result in any other workers compensation claims exceeding $50,000 (individually or in the aggregate) against the Company or any of its Subsidiaries.
(m) The Company and each of its Subsidiaries is in material compliance with all applicable local, state, federal and foreign Laws relating to employment, including, without limitation, Laws relating to discrimination, hours of work and the payment of wages or overtime wages. There are no complaints, lawsuits or other proceedings pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries brought by or on behalf of any applicant for employment, any current or former employee or any class of the foregoing, relating to any such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment, or alleging any other discriminatory, wrongful or tortuous conduct in connection with the employment relationship.
(n) There are no pending or, to the knowledge of the Company, threatened material investigations, audits, complaints or proceedings against the Company or any of its Subsidiaries by or before any Governmental Entity involving any applicant for employment, any current or former employee or any class of the foregoing, including, without limitation:
(i) the Equal Employment Opportunity Commission or any other state or local agency with authority to investigate claims or charges of employment discrimination in the workplace;
(ii) the United Staftes Department of Labor or any other state or local agency with authority to investigate claims or charges in any way relating to hours of employment or wages;
(iii) the Occupational Safety and Health Administration or any other state of local agency with authority to investigate claims or charges in any way relating to the safety and health of employees; and
(iv) the Office of Federal Contract Compliance or any corresponding state agency.
(o) In the three (3) years prior to the date hereof, neither the Company nor any of its Subsidiaries is has effectuated (i) a party to “plant closing” (as defined in the Worker Adjustment and Retraining Notification Act (the “WARN Act”) or bound by any collective bargaining, works council similar Law) affecting any site of employment or similar agreement, nor, to the Knowledge one or more facilities or operating units within any site of the Company, is any such agreement being negotiated by employment or facility of the Company or any of its Subsidiaries. There are no labor unionsSubsidiaries or (ii) a “mass layoff” (as defined in the WARN Act, works councils or other employee representatives any similar Law) affecting any site of employment or organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee facility of the Company or any of its Subsidiaries.
(kp) Except, in each case, as would not, individually or in Each Plan that is a “nonqualified deferred compensation plan” within the aggregate, reasonably be expected meaning of Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) subject to have a Company Material Adverse Effect, (i) Section 409A of the Company and each of its Subsidiaries is Code has been operated in compliance with all applicable Laws relating to employmentSection 409A of the Code, including Laws relating to discriminationbased upon a good faith, hours reasonable interpretation of workSection 409A of the Code and the notices, regulations, and other guidance of general applicability issued thereunder (together, the payment of wages or overtime wages, contractual obligations, consultation with employees, use of temporary or contingent workers, the employment of minors, occupational health and safety, labor relations, withholding, workplace insurance, plant closing, changes in operations and/or pay equity; (ii) the Company and each of its Subsidiaries has not received written notice “409A Authorities”). No Plan that would be a Nonqualified Deferred Compensation Plan subject to Section 409A of the intent of any Governmental Authority responsible Code but for the enforcement of labor or employment Laws effective date provisions that are applicable to conduct an audit or investigation Section 409A of the Company or any Subsidiary that has not been completed andCode, to the Knowledge of the Company, no such audit or investigation is as set forth in progress; (iii) the Company has filed all reports, information and notices required under applicable Laws regarding the hiring, hours, wages, occupational safety and health, employment, promotion, termination or benefits of all employees, and will timely file, prior to Closing, all such reports, information and notices required by applicable Laws to be given prior to Closing; (iv) there is no misclassification of any individual that renders services to the Company who is classified as (A) an independent contractor or other non-employee status, (B) an exempt or non-exempt employee or (C) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Laws governing the payment of wages; (v) the Company has paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay and bonuses; (vi) the Company has maintained records for all employees and personnel records in compliance with applicable Law; (vii) there are no outstanding penalties pursuant to worker’s compensation statutes or charges regarding same; (viii) the Company has complied with the requirements of the Immigration Reform and Control Act of 1986 and Section 274(A885(d) of the Immigration and Nationality Act with respect to all employees, and all employees who are performing services for the Company in the United States are legally able to work in the United States; and (ix) the Company has complied with the Worker Adjustment and Retraining Notification American Jobs Creation Act of 1988 2004, as amended (the “AJCA”), has been “materially modified” within the meaning of Section 885(d)(2)(B) of the AJCA after October 3, 2004, based upon a good faith reasonable interpretation of the AJCA and any similar state or other applicable Law provisionsthe 409A Authorities.
Appears in 1 contract
Samples: Merger Agreement (Ats Medical Inc)
