Employee Benefit Matters. (a) Section 3.20(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code. (b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan. (c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). (d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code). (e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code. (f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP. (g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner. (h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise. (i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law. (j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority. (k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable. (l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan. (m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code. (n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (InMed Pharmaceuticals Inc.), Agreement and Plan of Reorganization (InMed Pharmaceuticals Inc.)
Employee Benefit Matters. (a) Section 3.20(a3.21(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by any Company for the benefit of any current or former employee, officer, manager, director, retiree, independent contractor or consultant of any Company or any spouse or dependent of such individual, or under which any Company or any of its ERISA Affiliates has or may have any Liability, or with respect to which the Company has Parent or may any of its Affiliates would reasonably be expected to have any Liability Liability, contingent or otherwise (as listed on Section 3.21(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company FSH has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of separately identified in Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a3.21(a) of the CodeDisclosure Schedules each Benefit Plan that contains a change in control provision.
(b) With respect to each Benefit Plan, the Company has Companies have made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; and (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither Except as set forth in Section 3.21(c) of the Company nor Disclosure Schedules, each Benefit Plan and any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred related trust (other than any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or each a “multiple employer welfare arrangement” (as defined in Section 3(40Multiemployer Plan”)) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance material compliance with its terms and in material compliance with all applicable Laws (including ERISA ERISA, the Code and any applicable local Laws). Each Benefit Plan that is intended to be qualified within the Code).meaning of Section 401
(ea) Nothing of the Code (a “Qualified Benefit Plan”) is so qualified and has occurred received a favorable and current determination letter from the Internal Revenue Service, or with respect to any a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates orplan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), with respect to any period on or after the Closing Daterespectively, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f. Except as set forth in Section 3.21(c) With respect of the Disclosure Schedules, all benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan Plan, and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(gd) All reports With respect to each Benefit Plan (i) except as set forth in Section 3.21(d) of the Disclosure Schedules, no such plan is a Multiemployer Plan, and disclosures relating to the Benefit Plans (A) all contributions required to be filed with paid by any Company or furnished to a Governmental Authority or plan participants or beneficiaries its ERISA Affiliates have been prepared timely paid to the applicable Multiemployer Plan, (B) neither any Company nor any ERISA Affiliate has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied, and (C) a complete withdrawal from all such Multiemployer Plans at the Effective Time would not result in accordance any material liability to any Company; (ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA, and none of the assets of any Company or any ERISA Affiliate is, or may reasonably be expected to become, the subject of any lien arising under Section 302 of ERISA or Section 412(a) of the Code/ except as set forth in Section 3.21(d) of the Disclosure Schedules, no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA, and no plan listed in Section 3.21(d) of the Disclosure Schedules has failed to satisfy the minimum funding standards of Section 302 of ERISA or Section 412 of the Code; and (v) no “reportable event,” as defined in Section 4043 of ERISA, has occurred with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerrespect to any such plan.
(he) There exists no condition that would subject the Company to any Liability under the terms Except as set forth in Section 3.21(e) of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amendedDisclosure Schedules, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There there is no pending or, to the any Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the year prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kf) There Each individual who is classified by a Company as an independent contractor has been no amendment to, announcement by the Company or any properly classified for purposes of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any and benefit accrual under each Benefit Plan.
(mg) Neither Except as set forth in Section 3.21(g) of the Disclosure Schedules, neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, manager, employee, independent contractor or consultant of the any Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the any Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
. FSH has made available to Parent true and complete copies of any Section 280G calculations prepared (nwhether or not final) All Options have been duly authorized by the Company Board with respect to any disqualified individual in compliance connection with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactivelytransactions.
Appears in 2 contracts
Samples: Merger Agreement (United Insurance Holdings Corp.), Merger Agreement (United Insurance Holdings Corp.)
Employee Benefit Matters. (a) Section 3.20(a3.17(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: Schedule lists (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, each employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(23(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or any other applicable Law of the jurisdictions in which any Seller or a Mexican Subsidiary conducts business), (ii) each health, welfare, medical, dental and disability plan or program, and (iii) each bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, life insurance, supplemental retirement, pension, severance or other benefit plan, program or arrangement, and each written employment, termination, change in control, severance or other contract or agreement, to which any Seller or a Mexican Subsidiary is a party, with respect to which any Seller or a Mexican Subsidiary has any obligation, or that is maintained, contributed to or was subject required to Title IV of ERISA be contributed to or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in sponsored by any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA Seller or a Mexican Subsidiary, for the benefit of any Business Employee (collectively, the “multiple employer welfare arrangement” (as defined Plans”). Each Plan is in Section 3(40) writing and the Sellers have made available to the Purchaser an accurate copy of ERISA)each Plan, the most recent summary plan description for each Plan for which a summary plan description is required and any material determination, qualification and registration documents required to be filed in Canada or Mexico.
(db) Each Benefit Except as would not have a Material Adverse Effect, (i) each Plan has been established, administered and maintained materially in accordance with its terms and in compliance with the requirements of all applicable Laws (Laws, including ERISA and the U.S. Code), (ii) each Seller and each Mexican Subsidiary has performed all obligations to be performed by it under, and was not and is not in default under or in violation of, any Plan, (iii) no action, claim or proceeding is pending with respect to any Plan (other than claims for benefits in the ordinary course) and, to the knowledge of the Sellers, no fact or event exists that could give rise to any such action, claim or proceeding and (iv) all contributions or payments required to be made under each Plan, by reason of Part 3 of Subtitle B of Title I of ERISA, Section 412 of the U.S. Code or otherwise, prior to the Closing Date have been and will be timely made.
(c) Each Plan which is intended to be qualified under Section 401(a) of the U.S. Code has received a favorable determination letter from the IRS that it is so qualified, and each trust established in connection with any Plan which is intended to be exempt from federal income taxation under Section 501(a) of the U.S. Code has received a determination letter from the IRS that it is so exempt, and no fact or event has occurred since the date of such determination letter from the IRS which could reasonably be expected to adversely affect the qualified status of any such Plan or the exempt status of any such trust.
(d) No Plan is a multiemployer plan as defined in Section 3(37) of ERISA or the comparable provisions of the laws of Canada or Mexico.
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Except as set forth in Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D 3.17(e) of the Code Disclosure Schedule, no Plan provides for retiree medical or Sections 6652, 4975 or 4980H life insurance benefits other than in accordance with Section 4980B(f) of the U.S. Code.
(f) With Except as would not have a Material Adverse Effect, with respect to each Benefit any Plan subject to Canadian Law: (i) to the knowledge of the Sellers, no event has occurred that would result in the revocation of the registration of any such Plan or entitle any person to wind up or terminate any such Plan, in whole or in part, or that could otherwise reasonably be expected to adversely affect the tax status of any such Plan and (ii) all payments due contribution holidays, withdrawals from the Company and expenses paid from any such Plan have either been timely made in accordance with the terms of the material documents that support such Benefit Plan Plan, any applicable collective agreement and all applicable Law or are properly recorded Laws. Except as liabilities on the books set forth in Section 3.17(f) of the Company andDisclosure Schedule, to the extent required by GAAP, adequate reserves are reflected on the financial statements as of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paiddate hereof, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any directorthe Union Pension Plan, officerthere are no unfunded Liabilities, employee, independent contractor solvency deficiencies or consultant, as applicablewind-up deficiencies.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Innophos, Inc.), Purchase and Sale Agreement (Innophos Investment Holdings, Inc.)
Employee Benefit Matters. (a) Section 3.20(a3.17(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974 (as amended, and including the regulations thereunder, “ERISA”), whether or not such plan is written and whether or not subject to ERISA) , and each supplemental retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, equity, change in control, retention, severance, salary continuation, and other benefit similar agreement, plan, policy, program, plan or arrangementpractice, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements which is or understandings, in each such case, that is sponsoredhas been established, maintained, administered sponsored, or contributed to by the Company or with respect to under which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to For each Benefit Plan, the Company Seller has made available to Parent Buyer accurate, current current, and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has , or if not been reduced to writing, a written summary of all material plan terms; (ii) any written contracts and arrangements related to such Benefit Plan, including trust agreements or other funding arrangements, and insurance policies, certificates, and contracts; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as case of a result Benefit Plan intended to be qualified under Section 401(a) of the transactions contemplated Code, the most recent favorable determination or national office approval letter issued by this Agreement or otherwisethe Internal Revenue Service and any legal opinions issued thereafter with respect to the Benefit Plan’s continued qualification; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating the most recent Form 5500 filed with respect to any such Benefit Plan; and (v) copies of any material notices, letters audits, inquiries, or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Servicesfrom, or other filings with, any Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan and related trust has been established, administered administered, and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) . Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISAcivil action, to any liability for a breach of fiduciary duty under Section 409 of ERISApenalty, surcharge, or to tax Tax under applicable Law or penalty under Chapter 43 which would jeopardize the previously-determined qualified status of Subtitle D of the Code or Sections 6652any Benefit Plan. All benefits, 4975 or 4980H of the Code.
(f) With respect contributions, and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amountsLaws and accounting principles. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits Benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved for to the extent required by, and in accordance with, by GAAP.
(gd) All reports The Company has not incurred, and disclosures relating does not reasonably expect to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
incur: (hi) There exists no condition that would subject the Company to any Liability under the terms Title I or Title IV of ERISA, any related provisions of the Benefit Plans Code, or applicable Law relating thereto other than to any payment Benefit Plan; or (ii) any Liability to the Pension Benefit Guaranty Corporation. No complete or partial termination of benefits in the normal course of plan operation. Each any Benefit Plan can be amended, terminated has occurred or otherwise discontinued after the Closing in accordance with its terms, without material liabilities is expected to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. occur.
(e) The Company has no commitment not now or obligation and has not made at any representations to time within the previous six years contributed to, sponsored, or maintained: (i) any employee, officer, director, independent contractor “multiemployer plan” as defined in Section 3(37) of ERISA; (ii) any “single-employer plan” as defined in Section 4001(a)(15) of ERISA; (iii) any “multiple employer plan” as defined in Section 413(c) of the Code; (iv) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA; (v) a leveraged employee stock ownership plan described in Section 4975 (e)(7) of the Code; or consultant, whether or not legally binding, to adopt, amend, modify or terminate (vi) any other Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwisesubject to required minimum funding requirements.
(if) Other than as required by Section under Sections 601 et. seq. to 608 of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(mg) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (will, either alone or upon the occurrence of in combination with any additional or subsequent events): other event: (i) entitle any current or former director, officer, employee, independent contractor contractor, or consultant of the Company to any severance pay pay, increase in severance pay, or any other payment; (ii) accelerate the time of payment, funding funding, or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 2 contracts
Samples: Share Purchase Agreement (Staffing 360 Solutions, Inc.), Share Purchase Agreement (Staffing 360 Solutions, Inc.)
Employee Benefit Matters. (a) Set forth in Section 3.20(a) 4.20 of the OrthAlliance Disclosure Schedules contains Schedule is a true complete and complete accurate list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitationbut not limited to, each bonus planpension, deferred compensation planprofit sharing, supplemental retirement401(k), incentive compensation or retention planseverance, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay planwelfare, disability planand deferred compensation, death and all other material employee benefit planplans, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plansagreements, programs, agreementspolicies or arrangements including, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed but not limited to, been required to contribute tostock purchase, or had any Liability with respect tostock option, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISAemployment, change-in-control, fringe benefit, bonus and incentive, whether or not subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether formal or informal, oral or written, legally binding or not, under which any employee, former employee, director, consultant or independent contractor of OrthAlliance or any plan intended Subsidiary thereof has any present or future right to qualify benefits or under which OrthAlliance or any Subsidiary thereof has any present or future liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the "OrthAlliance Benefit Plans" but shall be separately identified in such Section 401(a) 4.20 of the CodeOrthAlliance Disclosure Schedule.
(b) With respect to each OrthAlliance Benefit Plan, the Company OrthAlliance has delivered or made available to Parent accurateOCA (i) current, current accurate and complete copies of each of the following: (i) where the such OrthAlliance Benefit Plan has been reduced to writingPlan, the including all trust agreements, each summary plan document together with all amendmentsdescription or other description, insurance or annuity contracts, agreements, participant records and any other material documents or instruments relating thereto; (ii) where copies of each Form 5500 Annual Report and accompanying schedules, each actuarial report (to the Benefit Plan has not been reduced to writing, a written summary of all material plan termsextent applicable) and; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as to each such term OrthAlliance Benefit Plan which is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as such term is defined in Section section 3(2) of ERISA), intended to qualify under section 401(a) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 Code, copies of ERISA. The Company has not participated in the most recent IRS determination letter (including copies of any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISAoutstanding request for determination letters).
(dc) Each OrthAlliance Benefit Plan has been established, established and administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any each such OrthAlliance Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, OrthAlliance and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated Subsidiaries are in compliance in all material respects with COBRA the applicable provisions of ERISA, the Code and other similar federal and state applicable Lawlaws, rules and regulations with respect thereto.
(jd) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Each OrthAlliance Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
is an "employee pension benefit plan" (l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(bsection 3(2) of ERISA) is qualified under section 401(a) of the Code and its related trust is exempt from federal income tax under section 501(a) of the Code; . No event has occurred or (vi) require a “grosscircumstance exists that will or could give rise to disqualification or loss of tax-up” exempt status of any such OrthAlliance Benefit Plan or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Codetrust.
(ne) All Options have been duly authorized No event has occurred and no condition exists that likely could subject OrthAlliance or any Subsidiary thereof to any tax, fine, lien, penalty or other liability imposed by ERISA (including any breach of fiduciary responsibility by any director, officer or employee), the Company Board Code or other applicable laws, rules and regulations.
(f) Neither OrthAlliance nor any Subsidiary thereof sponsors or maintains, or has ever sponsored or maintained, or has any actual or contingent liability under or relating to, any plan that is or was a defined benefit plan, as defined in compliance with the terms section 3(35) of the Stock Option Plan. No Options have been retroactively granted by the Company BoardERISA, nor has the exercise price of any such Option been determined retroactively.or that is a
Appears in 2 contracts
Samples: Merger Agreement (Orthodontic Centers of America Inc /De/), Merger Agreement (Orthalliance Inc)
Employee Benefit Matters. (a) Section 3.20(a3.14(a) of the Disclosure Schedules contains a true and complete list Schedule lists, as of each “the date hereof, (i) all employee benefit plan” plans (as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreementall bonus, programstock option, plan or arrangementstock purchase, includingrestricted stock, without limitation, each bonus planincentive, deferred compensation plancompensation, health, welfare, disability, retiree medical or life insurance, retirement, supplemental retirement, incentive compensation or retention planprofit sharing, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or planpension, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreementtermination pay, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement payments/arrangements or arrangement and other similar benefit plans, programs, policies or arrangements, and all employment, termination or severance contracts or agreements, arrangements to which any of BSC and the Sellers is a party; provided that any governmental plan or understandingsprogram requiring the mandatory payment of social insurance taxes or similar contributions to a governmental fund with respect to the wages of an employee shall not be considered a “Plan”; (ii) each employee benefit plan for which BSC or a Seller could incur liability under Section 4069 of ERISA in the event such plan has been or were to be terminated and (iii) any plan in respect of which BSC or a Seller could incur liability under Section 4212(c) of ERISA, in the case of each such caseplan described in (i), that is sponsored(ii) and (iii), maintained, administered or contributed to by the Company or with respect to which the Company BSC or a Seller has any obligation in respect of any Corresponding Transfer Date Employee or may have any Liability (eachwhich are maintained, contributed to or sponsored by BSC, a Seller or any of their respective ERISA Affiliates for the benefit of any Corresponding Transfer Date Employee (collectively, the “Benefit PlanPlans”). The Company has never adoptedEach U.S. Plan is in writing.
(b) With respect to each of the U.S. Plans, entered intoBSC or the Sellers have delivered or made available to the Purchaser complete copies of each of the following documents: (i) the Plan (including all amendments thereto); (ii) the annual report and actuarial report, maintainedif required under ERISA or the Code, sponsoredfor the most recent completed plan year; (iii) the most recent Summary Plan Description, contributed totogether with each Summary of Material Modifications, been if required to contribute tounder ERISA; (iv) if the U.S. Plan is funded through a trust or any third party funding vehicle, the trust or had any Liability other funding agreement (including all amendments thereto) and the latest financial statements with respect to, any “employee pension benefit plan” within to the meaning of Section 3(2most recently ended reporting period; and (v) of ERISA, whether or not subject the most recent determination letter received from the IRS with respect to ERISA, or any plan each U.S. Plan that is intended to qualify be qualified under Section 401(a) of the Code.
(bc) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Each Plan has been reduced to writingoperated in all material respects in accordance with its terms and the requirements of all applicable Laws, the plan document together with all amendments; (ii) where each of BSC and the Benefit Plan Sellers, as applicable, has not been reduced to writing, a written summary of performed all material plan terms; obligations required to be performed by it under, is not in any material respect in default under or in material violation of, and BSC has no Knowledge of any material default or violation by any party to, any Plan, and (iii) where applicableno Action is pending or, copies to the Knowledge of BSC, threatened by a Corresponding Transfer Date Employee with respect to any Plan (other than claims for benefits in the ordinary course) and, to the Knowledge of BSC, no fact or event exists that could give rise to any such Action.
(d) Each Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has timely received a favorable determination letter from the IRS covering all of the provisions applicable to the Plan for which determination letters are currently available that the Plan is so qualified and each trust established in connection with any Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code has received a determination letter from the IRS that it is so exempt, and no fact or event has occurred since the date of such determination letter or letters from the IRS to adversely affect the qualified status of any insurance policies and contracts, administration agreements and similar agreements, now in effect such Plan or required in the future as a result exempt status of the any such trust.
(e) The transactions contemplated by this Agreement will not, either alone or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and in combination with any other similar written communications (event or events, cause the Purchaser to incur any Liabilities under Title IV of ERISA. No Plan that is subject to Title IV of ERISA is a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a “multiemployer plan, ,” as such term is defined in Sections Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement (whether alone or otherwisetogether with any other event) will not, with respect to any Corresponding Transfer Date Employee: (i) entitle such employee to severance pay, termination pay or any other payment or benefit of any nature or (ii) accelerate the time of payment or vesting (other than the accelerated vesting of employee equity-based awards), or increase the amount of compensation due any such employee, in each case except as otherwise required under applicable Law.
(g) Neither BSC nor any of the Sellers is a party to, or liable under, any agreement, contract, arrangement or plan, including any Plan, that in any case could affect any Corresponding Transfer Date Employee, which has resulted or could reasonably be expected to result, separately or in the aggregate, in the payment of (i) any “excess parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state or local Law) or (ii) any amount that will not be fully deductible by the Purchaser pursuant to Section 162(m) of the Code (or any corresponding provision of state, local or foreign Law).
(h) No U.S. Plan provides, or is obligated to provide, benefits, including death or medical benefits (whether or not insured), with respect to any Corresponding Transfer Date Employee beyond such employees’ retirement or other termination of service, other than coverage mandated solely by applicable Law.
(i) Other than Within ninety (90) days prior to the applicable Employee Transfer Date, or with respect to the Closing Transfer Employees only, as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and date hereof, BSC or the Consolidated Omnibus Budget Reconciliation Act Sellers shall provide or make available (or, in respect of 1985Closing Transfer Employees, as amendedhas made available) to the Purchaser a list of each Corresponding Transfer Date Employee, which list sets forth such employee’s name (subject to applicable Law), current annual compensation (including, where applicable, bonus, stock awards, retention payments/arrangements, or other applicable Law (collectively, “COBRA”incentive compensation opportunity), no Benefit Plan provides post-termination years of credited service, full or retiree health benefits part time status, exempt/nonexempt status (where applicable), leave status (if applicable), hourly or salaried status, date of hire, work location, job title and any other payroll or individual tax information that may be necessary to any individual for any reason, and neither effect the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided transfer in accordance with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending orNeither BSC nor any of the Sellers has any formal plan or commitment to create any additional Plan, to the Company’s Knowledgeor modify or change any existing Plan, threatened Action relating to a Benefit Plan (that would affect any Corresponding Transfer Date Employee, other than routine claims for benefits), such modifications or changes made in the ordinary course of business that do not materially increase the level of benefits under such Plan and no Benefit Plan has been the subject that are consistent with those made in respect of an examination or audit by a Governmental Authority or the subject Plans covering employees of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental AuthorityBSC Other Businesses.
(k) There has been no amendment to, announcement by the Company With respect to each Plan established or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level maintained outside of the expense incurred United States of America primarily for benefit of Corresponding Transfer Date Employees of BSC or the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
Sellers residing outside the United States of America (l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any a “Foreign Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events”): (i) entitle any current a summary of all Foreign Benefit Plans has been provided to or former director, officer, employee, independent contractor or consultant of made available to the Company to severance pay or any other paymentPurchaser; (ii) accelerate all employer and employee contributions to each Foreign Benefit Plan required by Law or by the time terms of paymentsuch Foreign Benefit Plan have been made, funding or vestingor, or increase the amount of compensation (including stock-based compensation) due to any such individualif applicable, accrued, in accordance with normal accounting practices; and (iii) limit each Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities. A copy of each Foreign Benefit Plan will be provided to the Purchaser as soon as possible following the signing of this Agreement, provided that each Foreign Benefit Plan sponsored, maintained or restrict contributed to for the right benefit of the Company to merge, amend or terminate any Benefit Plan; Closing Transfer Employees shall be provided no later than three (iv3) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Codeweeks following such signing.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Stryker Corp), Sale and Purchase Agreement (Boston Scientific Corp)
Employee Benefit Matters. (a) Set forth in Section 3.20(a3.12(a) of the Company Disclosure Schedules contains Schedule is a true and complete list of (i) each “employee benefit plan” currently outstanding loan to any employee, officer or director of the Company or any Subsidiary, as that term is defined in Section 3(3well as (ii) of each ERISA Benefit Plan, (whether or not iii) each Equity Benefit Plan, and (iv) each Non-ERISA Benefit Plan (such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, described in each such case, that is sponsored, maintained, administered or contributed clauses (ii) through (iii) and related trusts and related agreements and arrangements being hereinafter referred to by as the Company or with respect to which the Company has or may have any Liability (each, a “"Benefit Plan”Plans"). The Company has never adopteddelivered or made available to Parent true and complete copies of all Benefit Plans, entered intosummary plan descriptions, maintainedagreements representing awards (including Options or Share Right Awards) granted thereunder, sponsoredand all financial statements, contributed to, been required to contribute to, actuarial reports and annual reports and returns filed with the Internal Revenue Service or had any Liability Department of Labor with respect toto the three (3) most recent filings made for such Benefit Plans prior to the date hereof.
(b) Except as would not reasonably be expected to have a Material Adverse Effect on the Company:
(i) each Benefit Plan has been operated and administered in compliance with its terms;
(ii) each Benefit Plan complies, any “employee pension benefit plan” as applicable, with requirements of ERISA and the Code, and all other applicable laws;
(iii) no "prohibited transaction" (within the meaning of Section 3(2406 of ERISA or Section 4975(c) of the Code) has occurred with respect to any ERISA Benefit Plan;
(iv) each Benefit Plan can be amended, discontinued or terminated at any time (including after the Effective Time) in accordance with its terms, without liability (other than (A) liability for ordinary administrative expenses typically incurred in a termination event, or (B) liabilities for which sufficient assets are set aside in a trust or insurance contract to satisfy such liabilities or which are accrued on the Company Financial Statements);
(v) all contributions required to be made in connection with any Benefit Plan through the date hereof have been timely made or, if not yet due, have been accrued on the Company Financial Statements;
(vi) other than claims in the ordinary course for benefits with respect to the Benefit Plans, there are no actions, suits or claims pending with respect to any Benefit Plan;
(vii) all reports, returns and similar documents with respect to the Benefit Plans required to be filed with any Governmental Entity have been timely filed; and
(viii) neither the Company, nor any Controlled Group Member has any obligation to provide health or other welfare benefits to former, retired or terminated employees, except as specifically required under Section 4980B of the Code or Part 6 of Subtitle B of Title I of ERISA, whether or not subject to ERISA, or any plan and the Company and the Controlled Group Members have complied in all respects with the notice and continuation requirements of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA and the regulations thereunder.
(c) Each Benefit Plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit PlanCode has received a favorable determination opinion, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect advisory or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence notification letter from the Internal Revenue ServiceService as to its qualification under Section 401(a) of the Code or has time remaining to apply for the same under applicable Treasury Regulations or IRS pronouncements, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit PlanKnowledge of the Company nothing has occurred that could adversely affect such qualified status.
(cd) Neither the Company nor any ERISA Affiliate Controlled Group Member maintains, sponsors, contributes to, or has ever an obligation to contribute to, or has maintained, sponsored, contributed to, or had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is "defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in " (within the meaning of Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(403(35) of ERISA).
, any multiemployer plan (dwithin the meaning of Section 3(37) Each Benefit Plan has been establishedof ERISA), administered and maintained materially in accordance with its terms and in compliance with all applicable Laws or any multiple employer plan (including ERISA and within the meaning of Section 413 of the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected There are no agreements, plans, arrangements or could reasonably be expected to subject other contracts covering current or former employees, consultants, directors or other service providers of the Company or any of its ERISA Affiliates orControlled Group Member which provide for any payment or benefit that would, with respect to any period on when considered individually or after in the Closing Dateaggregate, Parent or any of its Affiliates, to constitute a penalty parachute payment under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H 280G of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 2 contracts
Samples: Merger Agreement (QRS Corp), Agreement and Plan of Merger (QRS Corp)
Employee Benefit Matters. The representations and warranties given in this Section 4.17 assume in their entirety the accuracy and completeness of the representations and warranties set forth in Section 3.14 of the Unit Purchase Agreement and the related sections of the Unit Purchase Agreement Disclosure Schedule.
(a) Section 3.20(a4.17(a) of the Disclosure Schedules Schedule contains a true and complete list of each pension, benefit, retirement, compensation, profit-sharing, deferred compensation, incentive, performance award, phantom equity or other equity, change in control, retention, severance, vacation, paid time off, fringe-benefit and other similar agreement, plan, policy, program or arrangement, in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or after March 31, plan or arrangement2014 has been maintained, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by the Company or with respect to any of its Subsidiaries for the benefit of any current or former employee, officer, or director of the Company or any of its Subsidiaries or any spouse or dependent of such individual, or under which the Company or any of its Subsidiaries has or may have any Liability liability after March 31, 2014 (excluding any liability incurred on prior to April 1, 2014), contingent or otherwise (as listed on Section 4.17(a) of the Disclosure Schedule, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company PCF has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, now in effect and investment management or required in the future as a result of the transactions contemplated by this Agreement or otherwiseinvestment advisory agreements; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) modifications relating to any Benefit Plan; and (v) copies in the case of material noticesany Benefit Plan that is intended to be qualified under Section 401(a) of the Code, letters a copy of the most recent determination, opinion or other correspondence advisory letter from the Internal Revenue Service; and (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, Department a copy of Laborthe most recently filed Form 5500, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Planwith schedules attached.
(c) Neither Except as set forth in Section 4.17(c) of the Company nor Disclosure Schedule, each Benefit Plan (other than any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections multi-employer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISAeach a “Multi-employer Plan”) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and or maintained materially after March 18, 2011 has been done so in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
. Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (ea “Qualified Benefit Plan”) has received a favorable determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that the form of such Qualified Benefit Plan is so qualified under Section 401(a) of the Code, and to the Company’s Knowledge nothing has occurred after March 31, 2014 that would reasonably be expected to cause the revocation of such determination letter from the Internal Revenue Service or the unavailability of reliance on such opinion letter from the Internal Revenue Service, as applicable, nor has such revocation or unavailability been threatened. Nothing has occurred after March 31, 2014 with respect to any Benefit Plan that has subjected or could would reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a material penalty under Section 502 502(i) of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to a material tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f. Except as set forth in Section 4.17(c) With respect of the Disclosure Schedule, all benefits, contributions and premiums relating to each Benefit PlanPlan due after March 31, all payments due from the Company 2014 have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued after March 31, 2014 under any unfunded Benefit Plan have been paid, accrued paid or otherwise adequately reserved to reflected on the extent required by, Company’s books and in accordance with, GAAPrecords.
(gd) All reports and disclosures relating With respect to each Benefit Plan (i) no such plan is a Multi-employer Plan; (ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no such plan is subject to the Benefit Plans required to be filed with minimum funding standards of Section 302 of ERISA or furnished to a Governmental Authority Section 412 of the Code or plan participants Title IV of ERISA. No act or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition omission has occurred after March 31, 2014 that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, cause the Company or any Subsidiary to incur any liability under Title IV of their Affiliates ERISA or Code Section 412 as a result of being treated as a single employer under Code Section 414(b), (c), (m) or (o) with any other Person (other than ordinary administrative expenses typically incurred in a termination event. The the Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwiseCompany Subsidiary).
(ie) Other Except as set forth in Section 4.17(e) of the Disclosure Schedule and other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan currently provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates Subsidiaries has any Liability liability to provide post-termination or retiree health welfare benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicablewelfare benefits (excluding any liability that accrued on or prior to March 31, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law2014).
(jf) There Except as set forth in Section 4.17(f) of the Disclosure Schedule, there is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and to the Knowledge of the Company no Benefit Plan has after March 31, 2014 been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kg) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Each Benefit Plan that would increase the annual expense of maintaining such plan above the level is subject to Section 409A of the expense incurred for the most recently completed fiscal year Code has been operated after March 31, 2014 in compliance with respect to any directorsuch section and all applicable regulatory guidance (including notices, officer, employee, independent contractor or consultant, as applicablerulings and proposed and final regulations).
(lh) Neither Except as set forth in Section 4.17(h) of the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any directorDisclosure Schedule, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, director or natural person independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; or (viv) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 2 contracts
Samples: Merger Agreement (PCF 1, LLC), Merger Agreement (Neulion, Inc.)
Employee Benefit Matters. (ai) Section 3.20(a4.01(n)(i) of the Company Disclosure Schedules Schedule contains a true true, complete and complete correct list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) Company Benefit Plan and separately identifies each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, Company Benefit Plan that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any 1) an “employee pension benefit plan” within the meaning of (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA, whether or not subject to ERISA”)), or (2) an “employee welfare benefit plan” (as defined in Section 3(1) of ERISA). Neither the Company, any of its Subsidiaries nor any of the Controlled Group Members has any Liability with respect to any employee benefit plan, Contract, program, fund or arrangement in the nature of those arrangements described in the definition of Company Benefit Plan, other than the Company Benefit Plans. The Company has made available to Parent true, complete and correct copies of (A) each Company Benefit Plan (or a written summary of any unwritten plan or arrangement), together with all amendments thereto, (B) in the case of any Company Benefit Plan for which Forms 5500 are required to be filed, the two (2) most recent annual reports on Form 5500 with schedules attached filed with the Internal Revenue Service, (C) in the case of any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence most recent determination letter from the Internal Revenue Service, (D) with respect to each Company Benefit Plan, each trust agreement, insurance or group annuity contract, administration and similar agreements, and investment management or investment advisory agreements, (E) with respect to each Company Benefit Plan, the most recent summary plan description, or summary of material modifications, and (F) all personnel, payroll and employment manuals, handbooks and policies.
(ii) (A) Each Company Benefit Plan has been established and administered in all material respects in accordance with its terms and with applicable Law (including ERISA and the Code) and the regulations thereunder and each of the Company and any of its Subsidiaries has in all respects met its obligations with respect to each Company Benefit Plan and has timely made or accrued (or timely shall make or accrue) all required contributions thereto and paid all benefits thereunder, (B) all filings, reports, returns, and similar documents, as to each Company Benefit Plan required to have been submitted to the Internal Revenue Service or to the United States Department of Labor, Department of Health and Human Services, or to any other Governmental Authority relating to the Benefit Plan.
Entity, have been timely submitted, (cC) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either there have been no (i1) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan non-exempt prohibited transactions (as defined in Section 3(24975(c) of the Code and Section 406 of ERISA) with respect to any such Company Benefit Plan that is subject to Section 4975 of the Code or Section 406 of ERISA, where the Company or, to the Knowledge of the Company, any party dealing with such Company Benefit Plan or any such trust would reasonably be expected to be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code or (2) to the Knowledge of the Company, breaches of any of the duties imposed on “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA with respect to the Company Benefit Plans that are subject to ERISA that could reasonably be expected to result in any Liability or excise tax under ERISA or the Code being imposed on the Company or any of its Subsidiaries, and (D) all Company Benefit Plans that are intended to be qualified for Federal income tax purposes have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Benefit Plans are so qualified and the Company Benefit Plan and the trust related thereto are exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the Knowledge of the Company, has revocation been threatened and nothing has occurred that would adversely affect the qualification of any such plan.
(iii) Neither the Company, its Subsidiaries nor any of the Controlled Group Members has ever (A) maintained any “employee benefit plan” within the meaning of Section 3(3) of ERISA that was subject to Section 412 of the Code or Title IV of ERISA or had any Liability with respect to such plan, or (B) been obligated to contribute to a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The No Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant Benefit Plan is funded by, associated with or related to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute paymentsemployees’ beneficiary association” within the meaning of Section 280G(b501(c)(9) of the Code; . “Controlled Group Member” means any employer that would be considered a single employer with the Company under Sections 414(b), (c), (m) or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(co) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 2 contracts
Samples: Merger Agreement (Stryker Corp), Merger Agreement (Orthovita Inc)
Employee Benefit Matters. (a) Section 3.20(a) of the Disclosure Schedules contains a true True and complete list copies have been provided or made available to Buyer of each all material (i) “employee benefit planplans,” as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974, as amended (whether or not such plan is subject to “ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, and each other employment, consulting, severance, change in control, salary continuation, bonus, incentive, insurance, retention, retirement, deferred compensation, vacation, sick leave, health, medical, vision, disability, life, stock purchase, stock option or other compensatory plans, policies, agreements or arrangements that (A) are maintained, contributed to or required to be contributed to by the Company or any of its Subsidiaries and (B) cover any employee or former employee, consultant, director or other service provider of the Company or any of its Subsidiaries (collectively, the “Plans”) (or, in the case of a material unwritten Plan, a written description thereof), including, but not limited to, any trust instruments and insurance contracts forming a part of any Plan, and all amendments thereto; (ii) the most recent annual reports (Series 5500 and all schedules thereto), if any, required under ERISA or the Code in connection with each Plan or related trust; (iii) the most recent determination letters received from the IRS, if any, for each Plan and related trust which is intended to satisfy the requirements of Section 401(a) of the Code; and (iv) the most recent summary plan description together with the most recent summary of material modifications, if any, required under ERISA with respect to each Plan. Except as specifically provided in the foregoing documents delivered to Buyer, there are no material amendments to any Plan that have been adopted or approved by the Company or any of its Subsidiaries that are not reflected in the applicable Plan and neither the Company nor any of its Subsidiaries have undertaken to or committed to make any such amendments or to establish, adopt or approve any new Plan.
(b) The IRS has issued a favorable determination letter with respect to each Plan intended to qualify under Section 401(a) of the Code.
(b) With respect Code and the related trust that has not been revoked, and, to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each knowledge of the following: (i) where Company, no existing circumstances and no events have occurred that could adversely affect the Benefit qualified status of any such Plan or the related trust. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, each Plan has been reduced to writingadministered in compliance, in all respects, with its terms and with the requirements of Applicable Law, including, but not limited to, ERISA, the plan document together with Code, and all amendments; (ii) where the Benefit Plan has not been reduced to writingnecessary filing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies reporting and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plandisclosure requirements under Applicable Law.
(c) Neither Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, with respect to any Employee Plan covered by Title I of ERISA, no non-exempt transaction prohibited by Section 406 of ERISA or Section 4975 of the Code has occurred which will cause the Company to incur any liability under ERISA or the Code. The Company does not sponsor or contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA. None of the Company, any Subsidiary of the Company nor any entity that, in the past six years, together with the Company or any Subsidiary of the Company, would be treated as a single employer under Section 414 of the Code (an “ERISA Affiliate Affiliate”) (during the period that any such entity was an ERISA Affiliate) has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) maintained, sponsored or been required to contribute to a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 4971 of the Code or Section 302 (ii) been required at any time or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant is required currently to contribute to any “employee welfare benefit multiemployer plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(403(37) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could Except as would not reasonably be expected to subject have, individually or in the Company or any of its ERISA Affiliates oraggregate, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities Material Adverse Effect on the books of the Company andCompany, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its Subsidiaries is obligated under any employee welfare benefit plan as described in Section 3(1) of ERISA Affiliates has any Liability (a “Welfare Plan”) to provide post-termination life, health, medical, death or retiree health other welfare benefits with respect to any individual employee or ever representedformer employee (or their beneficiaries or dependents) of the Company, promised any of its Subsidiaries or contracted to any individual that such individual would be provided with post-their respective predecessors after termination of employment, except as required under Section 4980B of the Code or retiree health benefits. To Part 6 of Title I of ERISA or other Applicable Law, (ii) the extent applicableCompany and its Subsidiaries have each complied, each Benefit Plan has been operated in compliance in all material respects respects, with COBRA the notice and continuation coverage requirements, and all other similar applicable Lawrequirements, of Section 4980B of the Code and Parts 6 and 7 of Title I of ERISA, and the regulations thereunder, and any other Applicable Law with respect to each Welfare Plan that is, or was during any taxable year for which the statute of limitations on the assessment of federal income Taxes remains open, by consent or otherwise, a group health plan within the meaning of Section 5000(b)(1) of the Code and (iii) no Welfare Plan that is a group health plan, which is maintained, contributed to or required to be contributed to by the Company or any of its Subsidiaries, is a self-insured plan.
(je) There is are no pending or, to the Company’s Knowledgeknowledge, threatened Action relating to a Benefit Plan threatened, claims, lawsuits, arbitrations or audits asserted or instituted against any Plan, any fiduciary (as defined by Section 3(21) of ERISA) thereto, the Company, any of its Subsidiaries or any employee or administrator thereof in connection with the existence, operation or administration of any Plan, other than routine claims for benefits).
(f) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company (i) all contributions required to be made to any Plan by Applicable Law or by any Plan document or other contractual undertaking, and no Benefit Plan has all premiums due or payable with respect to insurance policies funding any Plan, for any period through the date hereof have been timely made or paid in full or, to the subject of an examination extent not required to be made or audit by a paid on or before the date hereof, have been fully reflected on the Company’s financial statements, (ii) all reports, returns and similar documents required to be filed with any Governmental Authority or distributed to any plan participant have been duly and timely filed or distributed and (iii) all amounts that the subject Company is legally or contractually required to deduct from the salaries of an application its employees have been duly paid into the appropriate fund or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authorityfunds.
(kg) There has been no amendment toExcept with respect to Company Stock Plans or bonus plans, announcement by neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby shall (either alone or in conjunction with any other event (which event would not alone have an effect described in the following clauses (i) through (iii))) (i) cause or result in the accelerated vesting, funding or delivery of, or increase the amount or value of, any material payment or benefit to any employee, consultant, director or other service provider of the Company or any of its Affiliates relating toSubsidiaries, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate cause or result in the time funding of payment, funding any Plan or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit cause or restrict result in a limitation on the right of the Company or any of its Subsidiaries to amend, merge, amend terminate or terminate receive a reversion of assets from any Benefit Plan; (iv) increase the amount payable under Plan or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Coderelated trust.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 2 contracts
Samples: Merger Agreement (Omnicare Inc), Merger Agreement (Omnicare Inc)
Employee Benefit Matters. (a) Section 3.20(a3.21(a) of the Company Disclosure Schedules Schedule contains a true true, complete and complete correct list of each “Plan. Each Plan is in writing and the Company has furnished Nu Skin and Merger Sub with a true, complete and correct copy of each Plan and a true, complete and correct copy of each material document prepared in connection with each such Plan including, without limitation, (i) a copy of each trust or other funding arrangement, (ii) each summary plan description and summary of material modifications, (iii) the most recently filed IRS Form 5500, (iv) the most recently received IRS determination letter for each such Plan, and (v) the most recently prepared actuarial report and financial statement in connection with each such Plan. Except as set forth in Section 3.21(a) of the Company Disclosure Schedule, there are no other employee benefit plans, programs, arrangements or agreements, whether formal or informal, whether in writing or not, to which the Company or any Subsidiary is a party, with respect to which the Company or any Subsidiary has any obligation or which are maintained, contributed to or sponsored by the Company or any Subsidiary for the benefit of any current or former employee, officer or director of the Company or any Subsidiary. Except as set forth in Section 3.21(a) of the Company Disclosure Schedule, neither the Company nor any Subsidiary has any express or implied commitment, whether legally enforceable or not, (i) to create or incur liability with respect to or cause to exist any other employee benefit plan” , program or arrangement, (ii) to enter into any contract or agreement to provide compensation or benefits to any individual or (iii) to modify, change or terminate any Plan, other than with respect to a modification, change or termination required by ERISA or the Code.
(b) None of the Plans is a Multiemployer Plan or a Multiple Employer Plan. Except as set forth in Section 3.21(b)(i) of the Company Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due under any Plan or (ii) materially increase any benefits otherwise payable under any Plan. Neither the Company nor any affiliate is a party to any agreement or arrangement that term would result, separately or in the aggregate, in the actual or deemed payment by the Company or a Subsidiary of any "excess parachute payments" within the meaning of section 280G of the Code (without regard to section 280G(b)(4) of the Code); and no acceleration of the vesting schedule for any property that is defined substantially unvested within the meaning of the regulations under Section 83 of the Code will occur in connection with the transactions contemplated by this Agreement. Except as set forth in Section 3.21(b)(ii) of the Company Disclosure Schedule, none of the Company, its Subsidiaries nor any other person which together with the Company or any of its Subsidiaries would be treated as a single employer under the Code maintains or has at any time maintained, or contributes to or has at any time within the last six years contributed to or been obligated to contribute to, any "pension plan" (within the meaning of Section 3(3) of ERISA (whether ERISA). None of the Plans provides for or not such plan promises retiree medical, disability or life insurance benefits to any current or former employee, officer or director of the Company or any Subsidiary except as required by Section 4980B(f) of the Code. Except as set forth in Section 3.21(b)(iii) of the Company Disclosure Schedule, each of the Plans is subject only to ERISAthe laws of the United States or a political subdivision thereof.
(c) Each Plan is now and each other benefit agreement, program, plan or arrangementalways has been operated in accordance with the requirements of all applicable Laws, including, without limitation, ERISA and the Code, and all persons who participate in the operation of such Plans and all Plan "fiduciaries" (within the meaning of Section 3(21) of ERISA) have always acted in accordance with the provisions of all applicable Laws, including, without limitation, ERISA and the Code. Each of the Company and each bonus planSubsidiary has performed all obligations required to be performed by it under, deferred compensation planis not in any respect in default under or in violation of, supplemental retirementand has no knowledge of any default or violation by any party to, incentive compensation any Plan. No Action is pending or retention planthreatened with respect to any Plan (other than claims for benefits in the ordinary course) and, equity purchase planto the knowledge of the Company, equity option planno fact or event exists that could give rise to any such Action.
(d) Each Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS that it is so qualified and each trust established in connection with any Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code has received a determination or opinion letter from the IRS that it is so exempt, equity appreciation right plan, phantom equity plan, vacation policy and no fact or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement event has occurred since the date of such determination letter from the IRS to adversely affect the qualified status of any such Plan or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each the exempt status of any such case, that is sponsored, maintained, administered trust. Each trust maintained or contributed to by the Company or with respect any Subsidiary which is intended to be qualified as a voluntary employees' beneficiary association and which is intended to be exempt from federal income taxation under Section 501(c)(9) of the Company Code has received a favorable determination letter from the IRS that it is so qualified and so exempt, and no fact or may have any Liability event has occurred since the date of such determination by the IRS to adversely affect such qualified or exempt status.
(each, a “Benefit Plan”). The Company e) There has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” no prohibited transaction (within the meaning of Section 3(2) 406 of ERISA, whether ERISA or not subject to ERISA, or any plan intended to qualify under Section 401(a) 4975 of the Code.
(b) With with respect to each Benefit any Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) . Neither the Company nor any ERISA Affiliate Subsidiary has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability liability for any penalty or excise tax arising under Section 4971, 4972, 4980, 4980B or 6652 of the Code or any material liability under Section 502 of ERISA, and no fact or event exists which could give rise to any such material liability.
(f) All contributions, premiums or payments required to be made with respect to, either to any Plan have been made on or before their due dates. All such contributions have been fully deducted for income tax purposes and no such deduction has been challenged or disallowed by any Governmental Authority and no fact or event exists which could give rise to any such challenge or disallowance.
(g) Each of the guaranteed investment contracts and other funding contracts with any insurance company that are held by any of the Plans and any annuity contracts purchased by (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) any of ERISA the Plans or (ii) an employee any pension benefit plan plans (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant provided benefits to any “employee welfare benefit plan” as defined in Section 3(1) current or former employees of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any Subsidiary was issued by an insurance company which received the highest rating from each of its ERISA Affiliates orDuff & Phelps Credit Xxxxng Co., with respect to any period on or after the Closing DateStandard & Poor's Insurance Rating Services, Parent or any of its AffiliatesA.M. Best Company and Moody's Invesxxxx Xxrvice, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D as of the Code or Sections 6652date such contract was issued, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from date hereof and the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerEffective Date.
(h) There exists no condition that would subject Except as set forth in Section 3.21(h) of the Company to any Liability under the terms Disclosure Schedule, each of the Benefit Plans or applicable Law relating thereto other than any payment of benefits Company and each Subsidiary is in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection compliance with the consummation applicable requirements of the transactions contemplated by this Agreement or otherwiseAmericans with Disabilities Act.
(i) Other than Except as required by set forth on Section 601 et. seq. of ERISA, Section 4980B 3.21(i) of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985Company Disclosure Schedule, as amended, or other applicable Law (collectively, “COBRA”), no Benefit each Plan provides that it may be amended or terminated at any time and, except for benefits protected under ERISA or the Code, all benefits payable to current, terminated or retired employees or any beneficiary, including, without limitation, post-termination employment health care or retiree health benefits to any individual for any reasoninsurance benefits, and neither may be amended or terminated by the Company nor or its Subsidiaries at any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Lawtime without liability.
(j) There is no pending orAll material expenses and liabilities relating to all of the Plans have been, to and will on the Closing Date be, fully and properly accrued on the Company’s Knowledge, threatened Action relating to a Benefit 's books and records and disclosed in accordance with U.S. GAAP and in Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authorityfinancial statements.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 2 contracts
Samples: Merger Agreement (Nu Skin Enterprises Inc), Merger Agreement (Nu Skin Enterprises Inc)
Employee Benefit Matters. (a) Section 3.20(a3.15(a) of the Company Disclosure Schedules contains Letter sets forth a true complete and complete accurate list of each “employee benefit plan” as that term is defined in Section 3(3) all material Company Employee Plans. Neither the Company nor any ERISA Affiliate of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, the Company has any plan or arrangementcommitment to establish any new material Company Employee Plan, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation to materially modify any Company Employee Plan (except to the extent required by law or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandingsto conform any such Company Employee Plan to the requirements of any applicable law, in each such case as previously disclosed to Parent in writing, or as required by this Agreement), or to adopt or enter into any Company Employee Plan, except, in each case, that is sponsored, maintained, administered or contributed as would not result in any material Liability to by the Company or with respect to which the Company has or may have any Liability (eachand its Subsidiaries, taken as a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Codewhole.
(b) With respect to each Benefit Company Employee Plan, the Company has made available to Parent accurate, current complete and complete accurate copies of each of the following: (i) where the Benefit such Company Employee Plan has been reduced to writing, the plan document (or a written summary of any unwritten plan) together with all amendments; , (ii) where in the Benefit Plan has not been reduced case of any plan for which Forms 5500 are required to writingbe filed, a written summary of all material plan terms; the most recent annual report (Form 5500) with schedules attached, (iii) where applicable, copies in the case of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result plan that is intended to be qualified under Section 401(a) of the transactions contemplated by this Agreement Code, the most recent determination, opinion, notification or otherwise; advisory letter from the IRS, and correspondence to or from the IRS or the DOL with respect to such letter (iv) copies of any each trust agreement, group annuity contract, administration and similar material agreements, investment management or investment advisory agreements, (v) the most recent summary plan descriptionsdescriptions and employee handbook, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any or other similar written material employee communications relating to employee benefits matters, (or a description vi) all material personnel, payroll and employment manuals and policies, (vii) the most recent annual and periodic financial statements and other annual accounting of assets for each Company Employee Plan that is funded, (viii) all communications material to any oral communications) employees relating to any Benefit Company Employee Plan and any proposed Company Employee Plans, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events which would result in any material liability to the Company, (ix) all material correspondence to or from any governmental agency relating to any Company Employee Plan within the past two (2) years, (ix) the three (3) most recent plan years’ discrimination tests for each Company Employee Plan; , (x) all registration statements, annual reports (Form 11-K and all attachments thereto) and prospectuses prepared in connection with each Company Employee Plan, and (vxi) copies of material noticesthe most recent annual actuarial valuations, letters or other correspondence from the Internal Revenue Serviceif any, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit for each Company Employee Plan.
(c) Except as would not result in any material Liability to the Company and its Subsidiaries, taken as a whole, each Company Employee Plan has been established, maintained and administered in all respects in accordance with all applicable Law, including if applicable, ERISA and the Code, and in accordance with its terms, and each of the Company, the Company’s Subsidiaries and their respective ERISA Affiliates have met their obligations with respect to each Company Employee Plan and have timely made (or timely will make) all required contributions thereto.
(d) Section 3.15(d) of the Company Disclosure Letter contains a complete and accurate list of each Company Employee Benefit Plan that has assets which include securities issued by the Company, any of the Company’s Subsidiaries or any of their respective ERISA Affiliates. Except as would not result in any material Liability to the Company and its Subsidiaries, taken as a whole, the Company’s Subsidiaries and their respective ERISA Affiliates have complied in all respects with the Xxxxxxxx-Xxxxx Act in respect of each such Company Employee Plan, and has timely filed any and all filings required under applicable Law in respect of each such Company Employee Plan.
(e) Except as would not result in any material Liability to the Company and its Subsidiaries, taken as a whole, all Company Employee Plans that are intended to be qualified under Section 401(a) of the Code, and all trusts that are intended to be qualified under Section 501(a) of the Code (each, a “Company Qualified Plan”), have received determination, opinion or advisory letters from the Internal Revenue Service to the effect that such Company Employee Plans are qualified and the plans and trusts related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or the Company has remaining a period of time under applicable U.S. Department of the Treasury regulations or Internal Revenue Service pronouncements in which to apply for such a letter and to make any amendments necessary to obtain a favorable determination as to the qualified status of each such Company Qualified Plan and to the Knowledge of the Company, no fact, circumstance or event has occurred or exists since the date of such letter that would reasonably be expected to materially and adversely affect the qualified status of any such Company Qualified Plan. Except as would not result in any material Liability to the Company and its Subsidiaries, taken as a whole, there has been no termination, partial termination or discontinuance of contributions to any Company Qualified Plan that resulted or may reasonably be expected to result in material liability to the Company and its Subsidiaries, taken as a whole. Except as would not result in any material Liability to the Company and its Subsidiaries, taken as a whole, no “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan.
(f) Neither the Company Company, any of the Company’s Subsidiaries nor any of their respective ERISA Affiliate Affiliates has ever in the preceding six (6) years maintained, participated in or contributed to, had an obligation to (or been obligated to contribute to), or incurred any Liability can reasonably expect to have future liability with respect to, either to (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an any employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or which was ever subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1Code; (ii) of ERISA or a “multiple employer welfare arrangementmultiemployer plan” (as defined in Section 3(404001(a)(3) of ERISA).
, (diii) Each Benefit Plan has been established, administered and maintained materially a “multiple employer plan” as defined in accordance with its terms and in compliance with all applicable Laws (including ERISA and or the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 (iv) a “funded welfare plan” within the meaning of Subtitle D of the Code or Sections 6652, 4975 or 4980H Section 419 of the Code.
(f. No Company Employee Plan is funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Code. No Company and, to the extent required by GAAP, adequate reserves Employee Plan provides health benefits that are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each not fully insured through an insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAPcontract.
(g) All reports and disclosures relating No Company Employee Plan provides post-termination benefits to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms former employees of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates its ERISA Affiliates, other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations pursuant to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither similar Law. Neither the Company nor any of its ERISA Affiliates Affiliate has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted (whether in oral or written form) to any individual employee of the Company or its ERISA Affiliates (either individually or to employees as a group) or any other person that such individual employee(s) or other person would be provided with post-termination or retiree health benefits. To , except to the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar required by applicable Law.
(jh) There Except as would not result in any material Liability to the Company and its Subsidiaries, taken as a whole, there is no action, suit, proceeding, claim, arbitration, audit or investigation pending or, to the Knowledge of the Company’s Knowledge, threatened Action relating or reasonably anticipated, with respect to any Company Employee Plan or the assets of any Company Employee Benefit Plan, other than claims for benefits in the ordinary course.
(i) Each Company Employee Plan maintained or covering employees outside the United States (the “Company Non-U.S. Employee Plans”), and the books and records thereof, is in material compliance with all applicable Law of each applicable jurisdiction. No such Company Non-U.S. Employee Plan has unfunded liabilities, that as of the Effective Time, will not be offset by insurance or fully accrued and, except as required by a Benefit Law, no condition exists that would prevent the Company or Parent from terminating or amending any such Company Employee Plan at any time for any reason without liability to the Company or its ERISA Affiliates (other than ordinary administration expenses or routine claims for benefits). Section 3.15(i) of the Company Disclosure Letter contains a complete and accurate list of each country in which the Company or any of its Subsidiaries or Affiliates has operations as of the Company Balance Sheet Date and the approximate number of employees in each such country as of the Company Balance Sheet Date.
(j) Section 3.15(j) of the Company Disclosure Letter sets forth a complete and accurate list of (i) all employment agreements with employees of the Company or any of its Subsidiaries, other than customary offer letters and no Benefit Plan has been other similar employment agreements entered into in the subject ordinary course of an examination business and that are terminable at-will without any Liability to the Company or audit any of its Subsidiaries; and (ii) all operative severance agreements, programs and policies of the Company or any of its Subsidiaries, excluding, in each case, programs and policies required to be maintained by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental AuthorityLaw.
(k) There has Except as would not reasonably be expected to result in Material liability to the Company and its Subsidiaries, taken as a whole, all contributions required to be made with respect to any Company Employee Plan on or prior to the Effective Time have been no amendment toor will be timely made or are reflected on the Company Balance Sheet.
(l) To the Knowledge of the Company (it being understood that for purposes of this Section 3.15(l), announcement the definition of Knowledge shall be deemed to include the Company’s Senior Vice President of Human Resources), neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated hereby (including the Merger) will, either alone or in conjunction with any other event, (i) result in any payment or benefit becoming due or payable, or required to be provided, 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, or (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation.
(m) No amount paid or payable by the Company or any of its Affiliates relating to, or change Subsidiaries in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year connection with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will hereby (either alone solely as a result thereof or upon the occurrence as a result of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or such transactions in conjunction with any other payment; (iievent) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in could be an “excess parachute paymentspayment” within the meaning of Section 280G(b) 280G of the Code; or . No person is entitled to receive any additional payment (vi) require a “including any tax gross-up” up or other payment from the Company or any of its Subsidiaries) as a result of the imposition of the excise taxes which may be required pursuant to any “disqualified individual” within the meaning of Section 280G(c) 4999 of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 2 contracts
Samples: Merger Agreement (Entropic Communications Inc), Merger Agreement (Maxlinear Inc)
Employee Benefit Matters. (a) Section 3.20(a4.13(a) of the Seller Disclosure Schedules contains sets forth a true and complete list of each “employee benefit plan” as that term is defined in Section 3(3) material Benefit Plan. Seller has made available to Buyer a copy of ERISA (whether the plan document, summary plan description, or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in summary of each such case, Benefit Plan and a copy of the most recent favorable determination letter for each such Benefit Plan that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any defined contribution plan and is intended to qualify be qualified under Section 401(a) of the Code.
(b) With Neither the Seller, nor any Affiliate, nor any ERISA Affiliate has, at any time within the past 6 years), with respect to each Benefit Planthe Business or Employees sponsored, maintained, administered, contributed to or had any liability with respect to a “multiemployer plan” (within the Company has made available to Parent accuratemeaning of Section 3(37) of ERISA), current and complete copies a “pension plan” (within the meaning of each Section 1 of the following: Pension Benefits Act (iOntario) where the Benefit Plan has been reduced or another applicable Law of provincial or federal jurisdiction) or a plan which is subject to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result Section 412 of the transactions contemplated by this Agreement Code, Section 302 of ERISA or otherwise; (iv) copies Title IV of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit PlanERISA.
(c) Neither the Company nor No material Proceeding has been asserted, instituted, or, to Seller’s Knowledge, threatened against any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 Benefit Plans (other than routine claims for benefits and appeals of ERISA. The Company has not participated in such claims) by any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA)Employee.
(d) Each Benefit Plan has been established, administered maintained and maintained materially operated in all material respects (i) in accordance with its terms and (ii) in compliance in form and operation with the applicable provisions of ERISA, the Code, and all other applicable Laws (including ERISA and the Coderequirements for tax-favored treatment intended for such plan or applicable to plans of its type).
(e) Nothing The consummation of the transactions contemplated hereby will not accelerate the time of payment or vesting or materially increase the amount, or require the funding, of compensation or benefits due to any Employee under any Benefit Plan or result in any excess parachute payments (as defined in Code §280G (without regard to subsection 280G(b)(4))).
(f) Each Benefit Plan intended to be qualified under Section 401(a) of the Code has received a determination letter (or the prototype plan on which it is based has received an opinion letter) from the IRS as to its qualification status under the Code, and nothing has occurred with respect since the date of any such determination letter that would reasonably be expected to result in any material Tax or penalty.
(g) No Benefit Plan provides health and welfare benefits beyond termination of service or retirement other than (i) coverage mandated by Law or (ii) death or retirement benefits under any Benefit Plan that has subjected or could reasonably is intended to be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty qualified under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H 401(a) of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities that is subject to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B 409A of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated administered in compliance in all material respects with COBRA its terms and other similar the operational and documentary requirements of Section 409A of the Code and all applicable Law.
regulatory guidance (j) There is no pending orincluding notices, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits)rulings, and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authorityproposed and final regulations) thereunder.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 2 contracts
Samples: Transaction Agreement, Transaction Agreement (Starbucks Corp)
Employee Benefit Matters. (a) Section 3.20(a4.10(a) of the Company Disclosure Schedules contains Schedule sets forth a true and complete list of each “all material employee, consultant or director benefit plans, arrangements or agreements, including any employee welfare benefit plan” plan within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as that term is defined in amended ("ERISA"), any employee pension benefit plan within the meaning of Section 3(33(2) of ERISA (whether or not such plan is subject to ERISA) and each other any material bonus, incentive, deferred compensation, vacation, stock purchase, stock option, severance, termination, indemnity, employment, change of control or fringe benefit agreementplan, program, plan arrangement or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation agreement that provides benefits to any current or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy former employee or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by director of the Company or any of its Subsidiaries or any beneficiary or dependent thereof or with respect to which the Company has or may any of its Subsidiaries could have any Liability a material liability (eachcollectively, a “the "Benefit Plan”Plans"). The Company has never adoptedmade available to Parent for each Benefit Plan, entered intoif applicable, maintainedtrue and complete copies of (i) each Benefit Plan (or, sponsoredin the case of any unwritten Benefit Plan, a description thereof) and any amendment thereto, (ii) the most recent summary plan description (or similar document), (iii) the most recent Annual Reports (Form 5500 Series) and accompanying schedules, if any, (iv) the most recent actuarial report, and (v) the most recent determination letter from the IRS (if applicable).
(b) Section 4.10(b) of the Company Disclosure Schedule contains a complete and accurate list of all Key Employees, setting forth their respective names, current positions, salaries and target bonuses.
(i) Each Benefit Plan has been maintained and administered in material compliance with its terms and with all applicable laws including ERISA and the Code; (ii) each Benefit Plan intended to be qualified under Section 401(a) of the Code is so qualified and has been determined by the IRS to be so qualified, and, to the Company's Knowledge, no event has occurred that could reasonably be expected to adversely affect the qualified status of such Benefit Plan; (iii) neither the Company nor any of its Subsidiaries has incurred or is reasonably likely to incur any material liability or penalty under Sections 4975 or 4976 of the Code or Sections 409 or 502(i) of ERISA; (iv) there are no pending, or to the Company's Knowledge threatened, claims against or otherwise involving any of the Benefit Plans (other than routine claims for benefits); (v) no Benefit Plan is under audit or investigation by the IRS, the Department of Labor or the PBGC, and no such audit or investigation is pending or, to the Company's Knowledge, threatened; (vi) all contributions or other payments required to be made, as well as all required filings with Governmental Entities required to be made, as of the date of this Agreement to or pursuant to the Benefit Plans with respect to the Company or any of its Subsidiaries have been made; (vii) neither the Company nor any entity under "common control" with the Company within the meaning of Sections 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA (an "ERISA Affiliate") has at any time contributed to, or been required to contribute to, or had any Liability with respect to, any “employee "pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan " (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in Code, including any union"multi-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit employer plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” " (as defined in Section 3(40Sections 3(37) and 4001(a)(3) of ERISA).
; (dviii) Each Benefit Plan none of the Company and its Subsidiaries nor any ERISA Affiliates has been established, administered and maintained materially incurred any "withdrawal liability" (as defined in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(ePart I of Subtitle E of Title IV of ERISA) Nothing has occurred with respect to any Benefit Plan that has subjected not been satisfied in full; (ix) neither the Company nor any of its Subsidiaries has any obligation for retiree health or could reasonably be expected to subject life benefits, other than benefits mandated by applicable law; (x) the Company or its Subsidiaries may amend or terminate any of its ERISA Affiliates or, with respect to the Benefit Plans without incurring any period on or after the Closing Date, Parent or any material liability thereunder; (xi) all amounts of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the deferred compensation benefits under any Benefit Plan have been timely paid in full. All benefits properly accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved on the Financial Statements of the Company and its Subsidiaries to the extent required by, under GAAP; and in accordance with, GAAP(xii) each Benefit Plan which is an "employee welfare benefit plan" within the meaning of Section 3(1) of ERISA is either insured pursuant to a contract of insurance whereby the insurance company bears any risk of loss with respect to such claims or covered under a contract with a health maintenance organization (an "HMO") pursuant to which the HMO bears the liability for such claims.
(gd) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or Related Agreements will not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): ) (i) entitle constitute an event under any Benefit Plan, trust, or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former directoremployee, officer, employee, independent contractor consultant or consultant director of the Company to severance pay or any other payment; Subsidiary, or (ii) accelerate result in the time triggering or imposition of payment, funding any restrictions or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict limitations on the right of the Company or Parent to merge, amend or terminate any Benefit Plan; (iv) increase Plan and receive the full amount payable under of any excess assets remaining or result in resulting from such amendment or termination, subject to applicable taxes. No payment or benefit which has been made or will or may be made by the Company, any other material obligation pursuant of its Subsidiaries, Parent or any of its Affiliates with respect to any Benefit Plan; employee, officer or director of the Company or its Subsidiaries (va "Compensation Payment") result in “will be characterized as an "excess parachute payments” payment," within the meaning of Section 280G(b280G(b)(1) of the Code; , no amount of any Compensation Payment or (vi) require a “gross-up” or other payment benefit will fail to any “disqualified individual” within be deductible by the meaning Company by reason of Section 280G(c162(m) of the Code, and no deduction that the Company has taken on any previously filed Tax return would reasonably be expected to be challenged as non-deductible pursuant to Section 162(m) of the Code.
(ne) All Options have No Benefit Plan is or has been duly authorized by subject to Title IV or Section 302 of ERISA or Sections 412 or 4971 of the Code.
(f) There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability of the Company Board or any of its Subsidiaries following the Closing. Without limiting the generality of the foregoing, neither the Company nor any of its Subsidiaries, nor any of their respective ERISA Affiliates, has engaged in compliance any transaction described in Section 4069 or Section 4204 or 4212 of ERISA. "Controlled Group Liability" means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code, (iv) as a result of a failure to comply with the terms continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Stock Option Plan. No Options have been retroactively granted by Code, and (v) under corresponding or similar provisions of foreign laws or regulations, other than such liabilities that, in each case, arise solely out of, or relate solely to, the Company Board, nor has Benefit Plans listed in Section 4.10(a) of the exercise price of any such Option been determined retroactivelyDisclosure Schedule.
Appears in 2 contracts
Samples: Merger Agreement (Seminis Inc), Agreement and Plan of Merger (Seminis Inc)
Employee Benefit Matters. (a) Section 3.20(a3.16(a) of the Qumu Disclosure Schedules contains Letter sets forth a true complete and complete accurate list of all material Qumu Employee Plans. With respect to each Qumu Employee Plan maintained or sponsored by a professional employer organization (“employee benefit plan” as that term is defined PEO Plans”), the representations and warranties in this Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or 3.16 are made with respect to which the Company has or may have Qumu’s participation in any Liability (each, PEO Plan as a “Benefit Plan”)participating employer. The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Each PEO Plan is identified as such on Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a3.16(a) of the CodeQumu Disclosure Letter and no representation or warranty is made with respect to any other participating employer in a PEO Plan or as to the PEO Plan as a whole. Other than as required by applicable Legal Requirements or as otherwise required by this Agreement or in the ordinary course of business, neither Qumu nor any ERISA Affiliate of Qumu has committed to any officer, or publicly communicated to any other employees to establish any new Qumu Employee Plan, to modify or amend (except as required by applicable law) any Qumu Employee Plan or to adopt or enter into any Qumu Employee Plan.
(b) With respect to each Benefit Qumu Employee Plan, the Company Qumu has made available to Parent accurate, current Synacor complete and complete accurate copies of each of the following: (i) where the Benefit such Qumu Employee Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, or a written summary of any unwritten plan) together with all material plan terms; amendments thereto and all related trust documents, (iiiii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any most recent summary plan descriptions, summaries including any summary of material modifications, summaries of benefits and coverage, employee handbooks modifications thereto and any other similar written communications material description made available to participants therein, (or a description iii) in the case of any oral communicationsplan that is intended to be qualified under Section 401(a) of the Code, the most recent determination, opinion, notification or advisory letter from the IRS, and correspondence between the IRS or the DOL on the one hand and Qumu on the other hand with respect to such letter, (iv) group annuity contracts, insurance contracts or other funding vehicles, administration and similar material agreements, investment management or investment advisory agreements, (v) in the case of any plan for which Forms 5500 are required to be filed, the most recent annual report (Form 5500) with schedules attached, (vi) the most recent financial statements for such Qumu Employee Plan, and (vii) all material correspondence to or from any governmental agency relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from Qumu Employee Plan within the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Planpast year.
(c) Except as would not reasonably be expected to result in a Qumu Material Adverse Effect, (i) each Qumu Employee Plan has been established, maintained and administered in accordance with all applicable Legal Requirements, including if applicable, ERISA and the Code, and in accordance with its terms, and (ii) each of Qumu, Qumu’s Subsidiaries and their respective ERISA Affiliates have (A) met their obligations with respect to each Qumu Employee Plan and (B) have timely made or properly accrued on the financial statements in accordance with GAAP all required contributions or other amounts payable with respect thereto.
(d) All Qumu Employee Plans that are intended to be qualified under Section 401(a) of the Code, and all trusts that are intended to be qualified under Section 501(a) of the Code (each, a “Qumu Qualified Plan”), have (i) received determination, opinion or advisory letters from the IRS to the effect that such Qumu Employee Plans are qualified and the plans and trusts related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or Qumu has remaining a period of time under applicable U.S. Department of the Treasury regulations or IRS pronouncements in which to apply for such a letter and to make any amendments necessary to obtain a favorable determination as to the qualified status of each such Qumu Qualified Plan and (ii) no such determination, opinion or advisory letter has been revoked and no event or circumstance exists that has materially and adversely affected or would reasonably be expected to materially and adversely affect such qualification or exemption. Except as would not reasonably be expected to result in Qumu Material Adverse Effect, no “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Qumu Employee Plan.
(e) Neither the Company Qumu, any of Qumu’s Subsidiaries nor any of their respective ERISA Affiliate Affiliates has ever in the preceding six (6) years maintained, participated in or contributed to, had an obligation to (or been obligated to contribute to), or incurred any Liability can reasonably expect to have future liability with respect to, either to (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was Pension Plan subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1Code; (ii) of ERISA or a “multiple employer welfare arrangementmultiemployer plan” (as defined in Section 4001(a)(3) of ERISA), (iii) a “multiple employer plan” as defined in ERISA or the Code, or (iv) multiple employer welfare arrangement (within the meaning of Section 3(40) of ERISA).
(d) Each Benefit . No Qumu Employee Plan has been establishedis funded by, administered and maintained materially in accordance associated with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, related to a penalty under “voluntary employees’ beneficiary association” within the meaning of Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H 501(c)(9) of the Code. No Qumu Employee Plan provides health benefits that are not fully insured through an insurance contract.
(f) With respect Each Qumu Employee Plan (other than the Qumu Stock Plan or an employment, severance, change in control or similar agreement with an individual) is amendable and terminable unilaterally by Qumu and any of Qumu’s Subsidiaries party thereto or covered thereby at any time without material liability to each Benefit PlanQumu or any of its Subsidiaries as a result thereof, all payments due from other than for benefits accrued as of the Company have either been timely made in accordance with the terms date of such Benefit Plan amendment or termination and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAProutine administrative costs.
(g) All reports Other than as required under Section 601 et seq. of ERISA or equivalent state or local law, Qumu does not have any material liability in respect of, or material obligation to provide, health or other welfare benefits (excluding normal claims for benefits under Qumu’s group life insurance, accidental death and disclosures relating dismemberment insurance and disability plans and policies) or coverage to any person following retirement or other termination of employment (other than continuation coverage through the Benefit Plans required to be filed with end of the month in which such termination or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerretirement occurs).
(h) There exists is no condition that would subject action, suit, proceeding, claim, arbitration, audit or investigation pending or, to the Company Knowledge of Qumu, threatened or reasonably anticipated, with respect to any Liability under Qumu Employee Plan or the terms assets of any Qumu Employee Plan or Qumu Non-U.S. Employee Plan or the Benefit Plans or applicable Law relating thereto assets of any Qumu Non-U.S. Employee Plan, other than any payment of claims for benefits in the normal course ordinary course.
(i) Except as would not reasonably be expected to result in a Qumu Material Adverse Effect, each Qumu Non-U.S. Employee Plan is in material compliance with all applicable Legal Requirements of plan operationeach applicable jurisdiction. Each Benefit such Qumu Non-U.S. Employee Plan can be amended, terminated is funded to the extent required by applicable Legal Requirements or otherwise discontinued after the Closing applicable terms of such plan or has been accrued for to the extent required by GAAP or other applicable accounting rules. Section 3.16(i) of the Qumu Disclosure Letter contains a complete and accurate list of each country in accordance with its terms, without material liabilities to Parent, the Company which Qumu or any of their its Subsidiaries or Affiliates has employees or independent contractors as of the date of the Qumu Balance Sheet.
(j) Section 3.16(j) of the Qumu Disclosure Letter sets forth a complete and accurate list of (i) all employment agreements with employees of Qumu or any of its Subsidiaries, other than (A) standard form offer letters, (B) other similar employment agreements entered into in the ordinary administrative expenses typically incurred course of business and (C) agreements materially consistent with such standard forms, in a termination event. The Company has no commitment the case of (A), (B) and (C) that can be terminated by Qumu without notice, liability or obligation obligation; and has not made (ii) all severance agreements, programs and policies of Qumu or any representations of its Subsidiaries with or relating to any employeeits Section 16 officers, officerexcluding programs and policies required to be maintained by Legal Requirement.
(k) Other than as set forth on Section 3.16(k) of the Qumu Disclosure Letter and Sections 1.4(c) and 7.7(c) of this Agreement, director, independent contractor the negotiation or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISAwill not, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): in combination with another event, (i) entitle any current or former employee, director, officerconsultant or officer of Qumu or any Subsidiary of Qumu to any acceleration, employeeincrease in acceleration rights, independent contractor severance, or consultant of the Company to increase in severance pay pay, or any other payment; material compensation or benefit, (ii) accelerate the time of paymentdistribution, funding payment or vestingvesting (whether or not in connection with a non-competition provision), a lapse of repurchase rights or increase the amount of any material compensation (including stock-based compensation) or benefits due to any such individual; employee, director or officer, (iii) limit result in the forgiveness of indebtedness, or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under trigger an obligation to fund benefits. No payment or result in benefit which will or may be made by Qumu or its ERISA Affiliates will, either alone or together with any other material obligation event or events, give rise to the payment of any amount that would not be deductible pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) 280G of the Code; . There is no contract, agreement, plan or (vi) require arrangement to which Qumu or any Subsidiary of Qumu is a “party or by which it is bound that provides any individual with the right to a gross-up” , indemnification, reimbursement or other payment for any excise or additional taxes, interest or penalties incurred pursuant to any “disqualified individual” within the meaning of Section 280G(c) 409A or Section 4999 of the Code.
(nl) All Options have Each “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) maintained or sponsored by Qumu or any Subsidiary of Qumu has been duly authorized by the Company Board documented and operated in material compliance with the terms Section 409A of the Stock Option Plan. No Options have been retroactively granted by Code.
(m) Each of Qumu and the Company BoardQumu Subsidiaries complies in all material respects with the applicable requirements under the Affordable Care Act, nor has the exercise price Code, ERISA, COBRA, HIPAA, and other federal requirements for employer-sponsored health plans, and any corresponding requirements under state statutes, with respect to each Qumu Employee Plan that is a group health plan within the meaning of any Section 733(a) of ERISA, Section 5000(b)(1) of the Code, or such Option been determined retroactivelystate statute.
Appears in 2 contracts
Samples: Loan and Security Agreement (Synacor, Inc.), Merger Agreement (Synacor, Inc.)
Employee Benefit Matters. (a) Section 3.20(a4.19(a) of the Disclosure Schedules contains a true and complete list of each “pension, benefit, retirement, compensation, consulting, employee, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto) in effect as of the date hereof, in each case whether funded or unfunded, including each "employee benefit plan” as that term is defined in " within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, ERISA that is sponsored(i) in effect and covering one or more employees or former employees of the Business, maintained, administered or contributed to by the Company or with respect to and which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, is maintained, sponsored, contributed to, been or required to contribute tobe contributed to by Seller or (ii) under which Seller any of its Affiliates would reasonably be expected to have any Liability, contingent or had any Liability with respect to, any “employee pension benefit plan” within the meaning of otherwise (as listed on Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a4.19(a) of the CodeDisclosure Schedules, each, a "Benefit Plan").
(b) With respect to each Benefit Plan, the Company Seller has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the current plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any current trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any current summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Form 5500, with schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; (viii) the two most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation("PBGC") or other Governmental Authority relating to the Benefit PlanPlan within the last six years.
(c) Neither Each Benefit Plan and related trust (other than any multiemployer plan within the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections meaning of Section 3(37) or 4001(a)(3) of ERISA or (iieach a "Multiemployer Plan")) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA ERISA, the Code and any applicable local Laws). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a "Qualified Benefit Plan") is so qualified and has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) Nothing , and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. To Seller's Knowledge, nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company Seller or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f) With respect . All benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in fullLaws and accounting principles. All benefits accrued under any unfunded Benefit Plan have been timely paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAPwith the terms of such Benefit Plan and all applicable Laws and accounting principles.
(gd) All reports and disclosures Neither Seller nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the PBGC; (iii) incorrectly withdrawn from any Benefit Plans required Plan; or (iv) engaged in any transaction which would give rise to be filed with liability under Section 4069 or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerSection 4212(c) of ERISA.
(he) There exists With respect to each Benefit Plan (i) no condition that would subject such plan is a Multiemployer Plan; (ii) no such plan is a "multiple employer plan" within the Company to any Liability under the terms meaning of Section 413(c) of the Benefit Plans Code or applicable Law relating thereto other than any payment a "multiple employer welfare arrangement" (as defined in Section 3(40) of benefits in ERISA) and (iii) no Action has been initiated by the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities PBGC to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement such plan or otherwiseto appoint a trustee for any such plan.
(if) Other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan or other arrangement provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jg) There is no pending or, to the Company’s Seller's Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kh) There has been no amendment to, announcement by the Company Seller or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, consultant or independent contractor or consultantof Seller, as applicable.
(l) . Neither the Company Seller nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, consultant or independent contractor or consultantof Seller, whether or not legally binding, to adopt, amend, modify or terminate any Benefit PlanPlan or any collective bargaining agreement.
(mi) Each Benefit Plan that is subject to Section 409A of the Code has been administered in material compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including, notices, rulings and proposed and final regulations) thereunder. Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(j) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company Seller to severance pay or any other payment; (ii) other than under any Benefit Plan, accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (viv) result in “"excess parachute payments” " within the meaning of Section 280G(b) of the Code; or (viv) require a “"gross-up” " or other payment to any “"disqualified individual” " within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (ai) Section 3.20(a4.01(l)(i) of the Company Disclosure Schedules Schedule contains a true true, complete and complete correct list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) Company Benefit Plan and separately identifies each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, Company Benefit Plan that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any 1) an “employee pension benefit plan” within the meaning of (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA, whether or not subject to ERISA”)), or (2) an “employee welfare benefit plan” (as defined in Section 3(1) of ERISA). Neither the Company, any of its Subsidiaries nor any of the Controlled Group Members has any Liability with respect to any employee benefit plan, Contract, program, fund or arrangement in the nature of those arrangements described in the definition of Company Benefit Plan, other than the Company Benefit Plans. The Company has made available to Parent true, complete and correct copies of (A) each Company Benefit Plan (or a written summary of any unwritten plan or arrangement), together with all amendments thereto, (B) in the case of any Company Benefit Plan for which Forms 5500 are required to be filed, the two (2) most recent annual reports on Form 5500 with schedules attached filed with the Internal Revenue Service, (C) in the case of any Company Benefit Plan that is intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence most recent determination letter from the Internal Revenue Service, (D) with respect to each Company Benefit Plan, each trust agreement, insurance or group annuity contract, administration and similar agreements, and investment management or investment advisory agreements, (E) with respect to each Company Benefit Plan, the most recent summary plan description, or summary of material modifications, and (F) all personnel, payroll and employment manuals, handbooks and policies.
(ii) Except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, (A) each Company Benefit Plan has been established and administered in all material respects in accordance with its terms and with applicable Law (including ERISA and the Code) and the regulations thereunder and each of the Company and any of its Subsidiaries has in all respects met its obligations with respect to each Company Benefit Plan and has timely made or accrued (or timely shall make or accrue) all required contributions thereto and paid all benefits thereunder, (B) all filings, reports, returns, and similar documents, as to each Company Benefit Plan required to have been submitted to the Internal Revenue Service or to the United States Department of Labor, Department of Health and Human Services, or to any other Governmental Authority relating to the Benefit Plan.
Entity, have been timely submitted, (cC) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either there have been no (i1) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan non-exempt prohibited transactions (as defined in Section 3(24975(c) of the Code and Section 406 of ERISA) with respect to any such Company Benefit Plan that is subject to Section 4975 of the Code or Section 406 of ERISA, where the Company or, to the Knowledge of the Company, any party dealing with such Company Benefit Plan or any such trust would reasonably be expected to be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code or (2) to the Knowledge of the Company, breaches of any of the duties imposed on “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA with respect to the Company Benefit Plans that are subject to ERISA that could reasonably be expected to result in any Liability or excise tax under ERISA or the Code being imposed on the Company or any of its Subsidiaries, and (D) all Company Benefit Plans that are intended to be qualified for Federal income tax purposes have been the subject of determination letters from the Internal Revenue Service to the effect that such Company Benefit Plans are so qualified and the Company Benefit Plan and the trust related thereto are exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor, to the Knowledge of the Company, has revocation been threatened.
(iii) Neither the Company, its Subsidiaries nor any of the Controlled Group Members has ever (A) maintained any “employee benefit plan” within the meaning of Section 3(3) of ERISA that was subject to Section 412 of the Code or Title IV of ERISA or had any Liability with respect to such plan, or (B) been obligated to contribute to a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The No Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant Benefit Plan is funded by, associated with or related to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute paymentsemployees’ beneficiary association” within the meaning of Section 280G(b501(c)(9) of the Code; . “Controlled Group Member” means any employer that would be considered a single employer with the Company under Sections 414(b), (c), (m) or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(co) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a4.13(a) of the Disclosure Schedules contains a true and complete list Schedule lists, as of each “the date of this Agreement, all employee benefit plan” plans (as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974, as amended (whether “ERISA”)), all stock option or not such plan is subject to ERISAequity incentive program, stock purchase, restricted stock, deferred compensation, retiree medical or life insurance, supplemental retirement or other material benefit plans, programs or arrangements (including bonus, incentive, vacation, paid-time-off or severance plans) and each other benefit agreementall material employment, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plantermination, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, contracts or agreements, arrangements to which NPC or understandingsone of its Subsidiaries is a party, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which NPC or one of its Subsidiaries has any obligation or Liability or which are maintained, contributed to or sponsored by NPC or one of its Subsidiaries for the Company has or may have benefit of any Liability NPC Employee (eachcollectively, a the “Benefit PlanPlans”). The Company NPC has never adoptedmade available to the Purchaser a true and complete copy of each Plan (or, entered intoif not written, a written summary of its terms), (ii) any related trust agreement or other funding instrument; (iii) the most recent IRS determination or opinion letter, if applicable; (iv) any summary plan description and other material written communication (or a description of any material oral communications) by NPC and its Subsidiaries to their employees concerning the benefits provided under the Plan; and (v) the most recent financial statements and Form 5500 annual report (including attached schedules).
(b) Each Plan has been maintained, sponsoredin form and operation and administered in all material respects in accordance with its terms and the requirements of all applicable Laws, contributed to, been including ERISA and the Code. Each of NPC and its Subsidiaries has performed all material obligations required to contribute tobe performed by it under, is not in any material respect in default under or had in material violation of, and, to the Knowledge of NPC, there is no material default or violation by any Liability with respect other party to, any “employee pension benefit plan” within Plan. No Action is pending or, to the meaning Knowledge of Section 3(2NPC, threatened with respect to any Plan (other than claims for benefits in the ordinary course) and, to the Knowledge of ERISANPC, whether no fact or not subject event exists that could give rise to ERISA, or any plan such Action.
(c) Each Plan that is intended to qualify be qualified under Section 401(a) of the CodeCode or Section 401(k) of the Code has timely received a favorable determination or opinion letter from the Internal Revenue Service covering all of the provisions applicable to the Plan for which determination or opinion letters are currently available that the Plan is so qualified and each trust established in connection with any Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code has received a determination letter from the Internal Revenue Service that it is so exempt, and no fact or event has occurred since the date of such determination letter or letters from the Internal Revenue Service to adversely affect the qualified status of any such Plan or the exempt status of any such trust.
(bd) With All contributions, premiums or payments required to be made with respect to each Benefit Plan, any Plan (including any Plan not subject to the Company has made available to Parent accurate, current and complete copies of each Laws of the following: (iUnited States) where the Benefit have been made on or before their due dates. No unfunded Liability exists with respect to any Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan that has not been reduced accrued on the Interim Balance Sheet in accordance with GAAP. Neither NPC nor any of its Subsidiaries sponsors, maintains or has any obligation or Liability with respect to writingany Plan that is subject to Title IV of ERISA, a written summary including any multiemployer plan (as such term is defined under Section 3(37) of all material plan terms; (iii) where applicableERISA). Neither NPC nor any of its Subsidiaries has any current or potential obligation to provide post-employment health, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect life or other welfare benefits other than as required in the future as a result under Section 4980B of the transactions Code or any similar applicable law.
(e) Except as contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined set forth in Sections 3(37) or 4001(a)(3Section 4.13(e) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) the Disclosure Schedule, neither the execution and delivery of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with this Agreement nor the consummation of the transactions contemplated by this Agreement or otherwise.
will (i) Other than as required by Section 601 et. seq. of ERISAresult in any payment (including severance, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985golden parachute, as amended, bonus or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits otherwise) becoming due to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor director or consultant of the Company to severance pay NPC, or any other payment; (ii) accelerate the time of payment, funding the payment or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to mergeamount, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in the forfeiture, of compensation or benefits under any Plan.
(f) Each Plan or other material obligation pursuant to any Benefit Plan; agreement or arrangement that is a “non-qualified deferred compensation plan” (v) result as such term is defined in “excess parachute payments” within the meaning of Section 280G(b409A(d)(1) of the Code; or ) (vii) require a “gross-up” or other payment to any “disqualified individual” within has, at all times since the meaning adoption of Section 280G(c409A of the Code, been administered in material good faith compliance with the requirements of Section 409A of the Code and applicable guidance issued thereunder and (ii) has been, since the later of (A) January 1, 2009 and (B) such plan’s, agreement’s or arrangement’s inception date, in a written form that materially complies with, and has been administered in material compliance with, Section 409A of the Code and the final regulations promulgated and in effect thereunder. No amounts paid or currently payable under any such plan or arrangement have been subject to the interest and additional tax set forth under Section 409A(a)(1)(B) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance Code and neither NPC nor any Subsidiary has any obligation to gross-up or indemnify any individual with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of respect to any such Option been determined retroactivelytax.
Appears in 1 contract
Samples: Purchase and Sale Agreement (NPC Operating Co B, Inc.)
Employee Benefit Matters. (a) Section 3.20(a3.17(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974 (as amended, and including the regulations thereunder, “ERISA”), whether or not such plan is written and whether or not subject to ERISA) , and each supplemental retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, equity, change in control, retention, severance, salary continuation, and other benefit similar agreement, plan, policy, program, plan or arrangementpractice, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements which is or understandings, in each such case, that is sponsoredhas been established, maintained, administered sponsored, or contributed to by the Company or with respect to under which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to For each Benefit Plan, the Company has Sellers have made available to Parent Buyer accurate, current current, and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has , or if not been reduced to writing, a written summary of all material plan terms; (iiiii) where applicableany written contracts and arrangements related to such Benefit Plan, copies of any including trust agreements or other funding arrangements, and insurance policies policies, certificates, and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (viii) copies of any material notices, letters audits, inquiries, or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Servicesfrom, or other filings with, any Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered administered, and maintained materially in accordance with its terms and in substantial compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing . To Sellers’ Knowledge, nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISAcivil action, to any liability for a breach of fiduciary duty under Section 409 of ERISApenalty, surcharge, or to tax Tax under applicable Law or penalty under Chapter 43 has jeopardized the previously-determined qualified status of Subtitle D of the Code or Sections 6652any Benefit Plan. To Sellers’ Knowledge, 4975 or 4980H of the Code.
(f) With respect all benefits, contributions, and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, Laws and in accordance with, GAAPaccounting principles.
(gd) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
The Company has not incurred: (hi) There exists no condition that would subject the Company to any material Liability under the terms Title I or Title IV of ERISA, any related provisions of the Benefit Plans Code, or applicable Law relating thereto other than to any payment Benefit Plan; or (ii) any Liability to the Pension Benefit Guaranty Corporation. No complete or partial termination of benefits in the normal course of plan operation. Each any Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. has occurred.
(e) The Company has no commitment not now or obligation and has not made at any representations to time within the previous six years contributed to, sponsored, or maintained: (i) any employee, officer, director, independent contractor “multiemployer plan” as defined in Section 3(37) of ERISA; (ii) any “single-employer plan” as defined in Section 4001(a)(15) of ERISA; (iii) any “multiple employer plan” as defined in Section 413(c) of the Code; (iv) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA; or consultant, whether or not legally binding, to adopt, amend, modify or terminate (v) any other Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwisesubject to required minimum funding requirements.
(if) Other than as required by Section under Sections 601 et. seq. to 608 of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(mg) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (will, either alone or upon the occurrence of in combination with any additional or subsequent events): other event: (i) entitle any current or former director, officer, employee, independent contractor contractor, or consultant of the Company to any severance pay pay, increase in severance pay, or any other payment; (ii) accelerate the time of payment, funding funding, or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Enservco Corp)
Employee Benefit Matters. (a) i. Section 3.20(a3.18(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” (as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA)) and each other benefit, retirement, employment, consulting, compensation, incentive, bonus, stock option, restricted stock, restricted stock unit, stock appreciation right, phantom equity, equity-based compensation, change in control, severance, transaction bonus, retention, vacation, paid time off, retiree health and welfare, welfare and fringe-benefit agreement, arrangement, plan, policy or program, plan whether or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandingsnot reduced to writing, in each effect and covering one or more current or former employees of the Company or any of its Subsidiaries, current or former directors of the Company or any of its Subsidiaries, current or former individual service providers of the Company or any of its Subsidiaries or the beneficiaries or dependents of any such casePersons, (i) that is maintained, administered, sponsored, maintainedcontributed to, administered or required to be contributed to by the Company or with respect to any of its Subsidiaries, or (ii) under which the Company or any of its Subsidiaries has or may have any Liability liability (each, a “Benefit Plan”). The Company has never adoptedSection 3.18(a) of the Disclosure Schedules identifies separately each Benefit Plan that is either maintained outside of the United States or that is subject to the Laws of a jurisdiction other than the United States or a political subdivision thereof (each, entered intoan “International Plan”). Sellers have made available to Buyer each of the following to the extent applicable: (A) a copy of each such Benefit Plan (or, maintainedif such plan is not reduced to writing, sponsoreda summary of the terms of such Benefit Plan); (B) each summary plan description and summary of material modifications; (C) the two most recently filed Internal Revenue Service (“IRS”) Forms 5500; (D) the most recently received IRS determination letter for each such Benefit Plan; (E) the most recently prepared actuarial report and financial statement in connection with each such Benefit Plan; and (F) if such Benefit Plan is an International Plan, contributed to, been documents that are substantially comparable to the documents required to contribute to, or had any Liability be provided in clauses (A) through (E).
ii. Each Benefit Plan and related trust complies in all material respects with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan its terms and with all applicable Laws. Each Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code.
Code (b) With respect to each a “Qualified Benefit Plan, the Company ”) has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, received a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence favorable determination letter from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has subjected or occurred that could reasonably be expected to cause the revocation of such determination letter from the Internal Revenue Service or the unavailability of reliance on such opinion letter from the Internal Revenue Service. With respect to any Benefit Plan, to Sellers’ Knowledge, no event has occurred or is reasonably expected to occur that has resulted in or would subject the Company to a Tax under Section 4971 of the Code or the assets of the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, Subsidiaries to a penalty lien under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H 430(k) of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amountsiii. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither Neither the Company nor any of its ERISA Affiliates has, nor has had in the past six (6) years, any Liability actual or potential liability with respect to provide post-(i) a “defined benefit plan,” as defined in Section 3(35) of ERISA, (ii) a pension plan subject to the minimum funding standards of Section 302 of ERISA or Section 412 of the Code, (iii) a “multiemployer plan,” as defined in Section 3(37) or Section 4001(a)(3) of ERISA, or (iv) any “multiple employer plan” (within the meaning of Section 413 of the Code). Neither Sellers nor the Company: (A) has withdrawn from any pension plan with respect to which there remains any liability to the Company; or (B) has engaged in any transaction which would give rise to a liability of the Company or Buyer under Section 4069 or Section 4212(c) of ERISA.
iv. Other than as required under Section 4980B of the Code or other applicable Law, no Benefit Plan provides benefits or coverage in the nature of health, life or disability insurance or welfare benefits following retirement or other termination or retiree health of employment (other than death benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-when termination or retiree health benefits. To the extent applicable, each occurs upon death).
v. No Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
within the three (j3) There is no pending or, years prior to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has date hereof been the subject of an examination or audit by a Governmental Authority Authority. There are no actions, suits, claims, investigations or the subject of an application other legal proceedings (other than routine claims for benefits) pending or, to Sellers’ Knowledge, threatened, anticipated or filing under expected to be asserted with respect to any Benefit Plan or is a participant in, an amnesty, voluntary compliance, self-correction any related trust or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by other funding medium thereunder or with respect to the Company or any of its Affiliates relating to, ERISA Affiliate as the sponsor or change in employee participation fiduciary thereof or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicableother fiduciary thereof.
(l) Neither vi. Except for the Company nor any of its Affiliates has any commitment Stock Option Plan or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any as otherwise set out in Section 3.18 of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): Disclosure Schedules, no Benefit Plan exists that could: (i) entitle result in the payment to any current or former employee, director, officer, employee, independent contractor consultant or consultant other individual service provider of the Company to severance pay or its Subsidiaries of any money or other paymentproperty; (ii) accelerate the time vesting of payment, or provide any additional rights or benefits (including funding or vesting, or increase the amount of compensation (including stock-based compensationor benefits through a trust or otherwise) due to any such individualemployee, director, consultant or other individual service provider of the Company or its Subsidiaries; or (iii) limit or restrict the right ability of the Company Buyer or its Affiliates to merge, amend or terminate any Benefit Plan; , in each case, as a result of the execution of this Agreement (iv) increase the amount payable under either alone or result in conjunction with any other material obligation pursuant to event).
vii. Except as otherwise set forth in Section 3.18(g) of the Disclosure Schedules, neither the execution of this Agreement nor the consummation of the transactions contemplated (either alone or in conjunction with any Benefit Plan; (vother event) hereby will result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) SCHEDULE 4.12(A) lists and generally describes:
(i) each employee welfare benefit plan and each employee pension benefit plan within the meaning of Section 3.20(a3 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that is maintained or contributed to by Fan Asylum, its Subsidiaries or Shareholder for the benefit of Fan Asylum's or its Subsidiaries' employees (collectively, the "ERISA Plans"); and each trust fund maintained by Fan Asylum, its Subsidiaries or Shareholder in connection with any of such ERISA Plans; and
(ii) all other plans providing compensation (other than salaries or wages), benefits or perquisites to any class of employees of Fan Asylum or its Subsidiaries, including without limitation any incentive, bonus, stock option, restricted stock, vacation pay, sick pay and severance plans ("COMPENSATION PLANS"); and any cafeteria plan" ("125 PLAN") governed by Section 125 of the Internal Revenue Code of 1986, as amended, including all regulations and rules adopted in connection therewith or pursuant thereto (the "CODE"). The ERISA Plans, the Compensation Plans and any 125 Plan may be collectively referred to as the "EMPLOYEE PLANS."
(b) Shareholder has furnished to Purchaser a true, correct and complete copy of each of the ERISA Plans and any related trust agreements or other funding vehicles; true, correct and complete copies of the Compensation Plans and 125 Plan (or summaries of any unwritten Compensation Plans or 125 Plan) and true, correct and complete copies of any employment policy manuals distributed to any class of employees of Fan Asylum or its Subsidiaries. With respect to each of the ERISA Plans and any 125 Plan, Shareholder has also furnished to Purchaser the most recent summary plan description and the last three most recently filed annual reports required to be made on Form 5500. As to each of the ERISA Plans that is funded, Fan Asylum and its Subsidiaries have delivered or made available to Purchaser a true, correct and complete copy of the most recent annual financial report (including any auditor's report) with respect to such plan, and any subsequent interim report. Each such financial report and interim report is an accurate description of the financial status of the subject employee benefit plan, and to the knowledge of Fan Asylum, its Subsidiaries and Shareholder, there have been no adverse changes in the financial status of any such funded ERISA Plans since the date of the most recent report provided with respect thereto.
(c) SCHEDULE 4.12(C) specifically identifies each of the ERISA Plans that is represented to be a qualified plan under Code Section 401(a) ("QUALIFIED PLAN"). With respect to each Qualified Plan, the following are true: (a) the plan, in form and operation, currently satisfies, and for all years subsequent to the establishment of such plan, has satisfied, the qualification requirements of Section 401(a) of the Disclosure Schedules contains Code; and (b) the Internal Revenue Service (the "IRS") has issued a true favorable letter of determination with respect to the plan (including without limitation the provisions of the Tax Reform Act of 1986 and related regulations), and all amendments required by the Code as a condition of retention of such qualified status as of the date hereof have been adopted within time limits required to maintain such status or such time limits have not expired. Each of the Qualified Plans is and has been operating in compliance with all amendments required by the Tax Reform Act of 1986 and subsequent legislation and regulations. Fan Asylum or its Subsidiaries have furnished to Purchaser a true, correct and complete list copy of the most recent letter of determination issued with respect to each “employee such Qualified Plan.
(d) None of Fan Asylum and its Subsidiaries maintains or contributes to any Qualified Plan that is subject to Title IV of ERISA, nor has Fan Asylum or its Subsidiaries terminated or withdrawn from participation in any such plan. Except as set forth in SCHEDULE 4.12(D), none of the Qualified Plans is a Multiemployer Plan, as defined in ERISA Section 4001(a)(3). All contributions payable by Fan Asylum or its Subsidiaries to any of the ERISA Plans for any plan year ending prior to the date hereof have been paid in full on a timely basis and no accumulated funding deficiency (as defined in Section 302(a)(2) of ERISA) has been incurred with respect to any Qualified Plan subject to Code Section 412. Except as set forth in SCHEDULE 4.12(D), (i) neither Fan Asylum nor its Subsidiaries has maintained, contributed to or been required to contribute to a Multiemployer Plan, (ii) no amount is due by Fan Asylum or its Subsidiaries to any Multiemployer Plan on account of any withdrawal therefrom, (iii) no withdrawal events triggering liability have occurred with respect to any Multiemployer Plan (and no material risk of such event exists), (iv) no contingent liability exists with respect to any Multiemployer Plan in respect of an asset sale by Fan Asylum or any ERISA Affiliate made in the prior five (5) years, and (v) SCHEDULE 4.12(D), lists and described the current liability of Fan Asylum and its Subsidiaries under each Multiemployer Plan if a withdrawal liability occurred on the date of this Agreement.
(e) Neither Fan Asylum nor its Subsidiaries have engaged in, nor entered into any arrangement pursuant to which Fan Asylum or a Subsidiary is contractually bound to enter into, any transaction which could result in imposition upon Fan Asylum or its Subsidiaries, Purchaser or Purchaser's subsidiaries, of any excise tax under Sections 4971 through 4980B, inclusive, and Section 5000 of the Code or civil liability under Section 502(i) or 502(l) of ERISA or otherwise incurred a liability for any excise tax with respect to any of the Employee Plans, other than excise taxes that have heretofore been paid or have been accrued, and, in either case are fully reflected in the Balance Sheet.
(f) Fan Asylum or its Subsidiaries has (a) filed or caused to be filed on a timely basis each and every return, report, statement, notice, declaration and other document required to be filed with any governmental agency, federal, state and local (including, without limitation, the IRS, the Department of Labor, the Pension Benefit Guaranty Corporation and the SEC) with respect to each of the Employee Plans; and Fan Asylum or its Subsidiaries have maintained on their premises (or have caused to be maintained by a service provider) all records with respect to such plans as are required for their proper administration and proper continued reporting and disclosure; (b) timely complied with all applicable participant disclosure requirements of ERISA; and (c) maintained in full force and effect any bond required under ERISA in connection with the ERISA Plans.
(g) Neither Fan Asylum nor any Subsidiary (during the period it is a Subsidiary) is or ever has been a member of a controlled group of corporations, an unincorporated trade or business under common control, or a member of an affiliated service group (as such terms are defined in Sections 414(b), 414(c) and 414(m) of the Code), that includes any entity other than Fan Asylum and its Subsidiaries.
(h) Fan Asylum and its Subsidiaries have not utilized to any material extent, the services of "leased employees" (as defined in Section 414(n) of the Code) within the four (4) year period ending on the Closing Date, nor are there any persons now working for Fan Asylum or its Subsidiaries who are anticipated to become such leased employees with the passage of time, except to the extent such status would not have a Material Adverse Effect on any of the Employee Plans.
(i) Except as described in SCHEDULE 4.12(I), neither Fan Asylum nor its Subsidiaries maintain any group life insurance or health benefit coverage for former employees or directors of Fan Asylum or its Subsidiaries, other than group life insurance or health benefit coverage mandated by applicable law. Fan Asylum and its Subsidiaries have timely complied with all of their respective "COBRA" obligations under ERISA Section 602, Code Section 4980B and applicable state insurance laws, with respect to group life insurance or health benefit continuation coverage to be provided by those of its Employee Plans that provide such benefits.
(j) With respect to the Employee Plans, there are no claims, actions, suits or proceedings pending or, to the knowledge of Fan Asylum, its Subsidiaries and Shareholder, threatened against Fan Asylum, its Subsidiaries or any other fiduciaries thereof, respecting their duties or obligations to any such plan” , its assets, any trust thereunder or any participant or beneficiary thereof, except claims made in the ordinary course for benefits or compensation provided by such plans.
(k) Neither Fan Asylum, its Subsidiaries, nor any of their respective directors, officers, employees or other "fiduciaries," as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(23(21) of ERISA, whether or not subject to ERISA, has committed any breach of fiduciary responsibility imposed by ERISA or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred law with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates orPlans, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans Fan Asylum or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amendedits Subsidiaries, terminated or otherwise discontinued after the Closing in accordance with its termsPurchaser, without material liabilities to Parent, the Company Purchaser's subsidiaries or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment respective directors, officers or obligation and has not made any representations employees to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its liability under ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due applicable law and that is reasonably expected to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require have a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the CodeMaterial Adverse Effect.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aSchedule 3.15(a) contains a true, complete and accurate list of all deferred compensation, incentive compensation, pension, stock option, stock purchase, phantom stock, benefit, welfare, profit-sharing, retirement, disability, vacation, severance, disability, death benefit, hospitalization, insurance, incentive and other similar fringe or employee benefit plans, funds, programs or arrangements, whether written or oral, which (i) covers, is maintained for the benefit of, or relates to any or all current or former employees of the Disclosure Schedules contains Company and any ERISA Affiliate and (ii) is not a true and complete list of each Multi-Employer Plan (the “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not Employee Benefit Plans”). No such plan Employee Benefit Plan is subject to ERISA) and each other benefit agreement, program, plan Section 302 or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation Title IV of ERISA or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) 412 of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) . Neither the Company nor any ERISA Affiliate of the Company has ever maintainedany commitment to create any additional employee benefit plan or modify or change any existing Employee Benefit Plan other than as may be required by the express terms of this Agreement, contributed tosuch Employee Benefit Plan or applicable Law.
(b) Except as set forth in Schedule 3.15(b), had an obligation to contribute to, or incurred any Liability with respect toto each Employee Benefit Plan that has been qualified or is intended to be qualified under the Code or that is an “Employee Benefit Plan” within the meaning of Section 3(3) of ERISA, either such Employee Benefit Plan has been duly approved and adopted by all necessary and appropriate action of the Company, and, with respect to each Employee Benefit Plan, the Company heretofore has made available to Parent, for the last three years for which such documents were prepared and/or filed, as appropriate and to the extent applicable, true, complete and accurate copies of each of the following documents:
(i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or the Employee Benefit Plan and any amendments thereto;
(ii) an employee pension benefit plan the most recent annual report (as defined including all Schedules attached thereto), independent accountant’s report, actuarial report, if required under ERISA, and the most recent report prepared with respect thereto in Section 3(2accordance with Statement of Financial Accounting Standards No. 87;
(iii) the Summary Plan Description and summaries of material modifications and all modifications thereto communicated to employees with respect thereto;
(iv) if the Employee Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement and the financial statements thereof;
(v) the most recent determination letter, or “prototype plan” sponsor opinion letter if applicable, received from the Internal Revenue Service with respect to each Employee Benefit Plan intended to qualify under Sections 401 and/or 501(c)(9) of ERISAthe Code; and
(vi) that is if pending, favorable determination letter applications filed with the Internal Revenue Service, together with all attachments thereto and all subsequent correspondence and communications with regard to such application.
(c) Except as set forth in Schedule 3.15(c), with respect to the Employee Benefit Plans, all required contributions for all periods ending before the Closing have been or was will be paid in full by the Closing. As of the date hereof, none of the Employee Benefit Plans which are subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare unfunded benefit fund maintained pursuant to any “employee welfare benefit plan” liabilities, as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(404001(a)(16) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially Except as set forth in accordance with its terms and in compliance with all applicable Laws (including ERISA and the CodeSchedule 3.15(d).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on each Employee Benefit Plan (i) no prohibited transactions as defined in Section 406 of ERISA or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D 4975 of the Code have occurred or Sections 6652, 4975 or 4980H are expected to occur as a result of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law Merger or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement Agreement, (ii) no action, suit, grievance, arbitration or otherwise.
(i) Other than as required by Section 601 et. seq. other type of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amendedlitigation, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided claim with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, respect to the Company’s Knowledge, threatened Action relating to a assets of any Employee Benefit Plan (other than routine claims for benefitsbenefits made in the ordinary course of plan administration consistent with past practice for which plan administrative review procedures have not been exhausted) is pending or threatened or imminent against the Company, any ERISA Affiliate or any fiduciary, as such term is defined in Section 3(21) of ERISA (“Fiduciary”). To the knowledge of the Company, and no Benefit Plan neither the Company, nor its directors, officers, employees or any Fiduciary has been the subject of an examination or audit by a Governmental Authority any liability for failure to comply with ERISA or the subject Code for any action or failure to act in connection with the administration or investment of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(me) Neither the execution of this Agreement nor any Except as set forth in Schedule 3.15(e), each of the transactions contemplated by this Agreement will (either alone or upon Employee Benefit Plans is, and has been, operated in accordance with its terms and each of the occurrence Employee Benefit Plans, and the administration thereof is, and has been, in all material respects in compliance with the requirements of any additional and all applicable statutes, orders or subsequent events): governmental rules or regulations currently in effect, including but not limited to ERISA and the Code.
(if) entitle any current or former director, officer, employee, independent contractor or consultant of the Company The IRS has issued a favorable determination letter with respect to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due each Employee Benefit Plan intended to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in be “excess parachute paymentsqualified” within the meaning of Section 280G(b401(a) of the Code or, in the case of a "prototype plan," the Company relies on a favorable opinion letter issued by the IRS, in each case which letter has not been revoked or modified, and no circumstances exist that could adversely affect the qualified status of any such plan and the exemption under Section 501(a) of the Code of the trust maintained thereunder.
(g) Except as set forth in Schedule 3.15(g), no Employee Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by Section 4980B of the Code; , Section 601 of ERISA or other applicable law, (ii) death benefits under any “pension plan,” (iii) benefits the full cost of which is borne by the employee (or his/her beneficiary) or (viiv) require Employee Benefit Plans that can be amended or terminated by the Company without consent. Except as set forth in Schedule 3.15(g), the Company does not have any current or projected liability with respect to post-employment or post-retirement welfare benefits for retired, former, or current employees of the Company.
(h) No person will be entitled to a “gross-gross up” or other similar payment in respect of excise taxes under Section 4999 of the Code with respect to the transactions contemplated by this Agreement.
(i) Schedule 3.15(i) sets forth all contracts, agreements, plans or arrangements covering any employee of the Company or its Subsidiaries containing “disqualified individualchange of control,” within “stay-put,” transition, retention, severance or similar provisions, all of which are in writing, have heretofore been duly approved by the meaning Company, and true, complete and accurate copies of all of which are attached to such Schedule 3.15(i). Except as set forth in Schedule 3.15(i), there is no contract, agreement, plan or arrangement (oral or written) covering any employee of the Company that individually or collectively could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G(c) 280G of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a4.18(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by Seller for the Company benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Business or any spouse or dependent of such individual, or under which Seller or any of its ERISA Affiliates has or may have any Liability, or with respect to which the Company has Buyer or may any of its Affiliates would reasonably be expected to have any Liability Liability, contingent or otherwise (as listed on Section 4.18(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company Seller has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Form 5500, with schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Neither Each Benefit Plan and related trust (other than any multiemployer plan within the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or each a “multiple employer welfare arrangement” (as defined in Section 3(40Multiemployer Plan”)) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA ERISA, the Code, and any applicable local Laws). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a “Qualified Benefit Plan”) is so qualified and has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) , and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company Seller or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f) With respect . All benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, by GAAP.
(gd) All reports and disclosures Neither Seller nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any Liability under Title I or Title IV of ERISA or related provisions of the Code relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Plans Guaranty Corporation; (iii) withdrawn from any Benefit Plan; or (iv) engaged in any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA.
(e) With respect to each Benefit Plan (i) no such plan is a Multiemployer Plan, and (A) all contributions required to be filed with paid by Seller or furnished to a Governmental Authority or plan participants or beneficiaries its ERISA Affiliates have been prepared timely paid to the applicable Multiemployer Plan, (B) neither Seller nor any ERISA Affiliate has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied, and (C) a complete withdrawal from all such Multiemployer Plans at the Effective Time would not result in accordance any material liability to Seller; (ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA, and none of the Purchased Assets is, or may reasonably be expected to become, the subject of any lien arising under Section 302 of ERISA or Section 412(a) of the Code; and (v) no “reportable event,” as defined in Section 4043 of ERISA, has occurred with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerrespect to any such plan.
(hf) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan or other arrangement provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jg) There there is no pending or, to the CompanySeller’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kh) There has been no amendment to, announcement by the Company Seller or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, consultant or independent contractor or consultantof the Business, as applicable.
(l) . Neither the Company Seller nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, consultant or independent contractor or consultantof the Business, whether or not legally binding, to adopt, amend, modify or terminate any Benefit PlanPlan or any collective bargaining agreement.
(mi) Neither Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including, notices, rulings and proposed and final regulations) thereunder. Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(j) neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company Business to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (viv) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (viv) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) CPPI shall provide on or before ten (10) days from the Execution Date a schedule (the "Employee Plan Schedule") that sets forth all written and any other employee benefit plans, within the meaning of Section 3.20(a3(3) of ERISA, of which CPPI is aware, all written and any other bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, dependent care spending account or assistance, split dollar arrangement, cafeteria, severance or other benefit plans, programs or arrangements of which CPPI is aware, and all written or any other employment, termination, severance or other contracts or agreements with respect to which CPPI has any obligation or which are maintained, contributed to or sponsored by CPPI for the Disclosure Schedules contains benefit of any current employee, officer or director of CPPI employed in the Business or any former employee of CPPI who was previously employed in the Business, other than written contracts or agreements between CPPI and any individual employee which are not being assumed by the Buyer (collectively referred to as "Employee Plans"). Except as disclosed in the Employee Plan Schedule, each Employee Plan is in writing and CPPI has previously made available to the Buyer a true and complete list copy of each “Employee Plan and a true and complete copy of each of the following documents, to the extent applicable, prepared in connection with each such Employee Plan: (i) a copy of each trust or other funding arrangement, (ii) the most recently filed Internal Revenue Service ("IRS") Form 5500, (iii) the most recently received IRS determination letter, and (iv) the most recent summary plan description. Except as otherwise disclosed in the Employee Plan Schedule, CPPI has no express or implied commitment to modify, change or terminate any Employee Plan or to establish any new Employee Plan, other than with respect to a modification, change or termination required by ERISA or the Code;
(b) Other than those multiemployer plans listed on the Employee Plan Schedule, none of the Employee Plans is a multiemployer plan, within the meaning of Section 3 (37) or 4001 (a)(3) of ERISA (a "Multiemployer Plan") or a single-employer pension plan, within the meaning of Section 4001(a)(15) of ERISA, for which CPPI could incur liability under Sections 4063 or 4064 of ERISA (a "Multiple Employer Plan"). CPPI has not incurred with respect to any such Multiemployer Plan any withdrawal liability within the meaning of Sections 4201 and 4204 of ERISA, and no liabilities exist with respect to withdrawals from any Multiemployer Plans which could subject CPPI to any controlled group liability under Section 4001(b) of ERISA;
(c) There is no contract, agreement, or benefit arrangement covering any employees which, individually or collectively, would give rise to the payment of any amount which would constitute an "excess parachute payment" within the meaning of Section 280G of the Code, except as set forth in Exhibit 15A.1(c);
(d) With respect to each Employee Plan, no officer, director, or employee benefit plan” of CPPI or CPPI is currently liable for any material tax arising under Section 4971, 4972, 4975, 4976, 4977, 4979, 4980 or 4980B of the Internal Revenue Code, and to the best of CPPI's knowledge, no fact or event exists which could reasonably give rise to any such liability. CPPI has not incurred any liability under or arising out of Title IV of ERISA (other than any liability for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary course) that could have a material adverse effect, and to the best of CPPI's knowledge, no fact or event exists that could reasonably be expected to result in such a liability. None of the assets of CPPI is the subject of any lien arising under Section 302(f) of ERISA or Section 412(n) of the Code and no member of CPPI's controlled group, as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a414(c) of the Code., has been required to post any security under Section 307 of ERISA or Section 401(a)(29) of the Code with respect to any Employee Plan, and to the best of CPPI's knowledge, no fact or event exists which could reasonably give rise to any such lien or requirement to post any such security. To the best of CPPI's knowledge, no member of CPPI's controlled group has engaged in a transaction described in Section 4069 of ERISA;
(be) With Each Employee Plan is now and has been operated in all material respects in accordance with the requirements of all applicable laws, including ERISA and the Code. All expenses and liabilities relating to all of the Employee Plans as applied to the Business have been, and will at the Closing Date be, fully and properly accrued on CPPI's books and records and disclosed in accordance with generally accepted accounting principles and in financial statements of the Employee Plans;
(f) All group health plans, as defined under Section 5000(b)(1) of the Code, maintained by CPPI for the employees of the Business comply in all material respects with all COBRA health continuation coverage requirements under Section 4980B of the Code and Part 6 of Title I of ERISA;
(g) All reports, forms and other material documents required to be filed with any government entity or distributed to employees with respect to each Benefit Planany Employee Plan (including without limitation, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of Forms 5500 and summary annual reports), other than Multiemployer Plans, have been timely filed or distributed and are accurate in all material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.respects;
(ch) Neither Except as set forth in the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer planEmployee Plan Schedule, as such term of the Closing Date, no Employee Plan maintained by CPPI for the benefit of employees of the business which is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” liabilities (as defined in Section 3(404001 (a)(16) of ERISA)) exceeding the assets of such plan or has been completely or partially terminated;
(i) Except as set forth in the Employee Plan Schedule, with respect to each Employee Plan that is not a Multiemployer Plan, CPPI represents and covenants as follows:
(i) there are no investigations, or proceedings, either currently in progress or expected to be instituted in the future, by any administrative agency, whether local, state, or federal.
(dii) Each Benefit Plan has been established, administered and maintained materially no material prohibited transactions (as defined in accordance with its terms and in compliance with all applicable Laws (including Section 406 or 407 of ERISA and or Section 4975 of the Code).) have occurred for which a statutory exemption is not available;
(eiii) Nothing no reportable event (as defined in Section 4043 of ERISA) has occurred as to which a notice would be required to be filed with the Pension Benefit Guaranty Corporation;
(iv) to the best of CPPI's knowledge, no action or claims (other than routine claims for benefits made in the ordinary course of administration of the Employee Plans for which administrative review procedures of the Employee Plans have not been exhausted) are pending, threatened or imminent against or with respect to any Benefit Employee Plan, any employer who is participating (or who has participated) in any Employee Plan that or any fiduciary (as defined in Section 3(21) of ERISA) of the Employee Plan; and
(v) CPPI has subjected or no knowledge of any facts which could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect give rise to any period on such action or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Codeclaim.
(fj) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits Buyer shall provide COBRA health continuation coverage under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and Part 6 of Title I of ERISA as of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits Closing Date to any individual for any reason, and neither past or present employees of CPPI employed at the Company nor any Business who terminated their employment or whose employment is terminated on or prior to the Closing Date who were covered by a Welfare Plan which is not a Multiemployer Plan. Buyer shall also provide notice of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits COBRA rights to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To present employee of the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There Business whose employment is no pending or, to terminated on the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.Closing Date; and
(k) There has been no amendment to, announcement by the Company or CPPI shall be responsible for notifying any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level Multiemployer Plans which are group health plans subject to COBRA of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, termination of covered employees as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any a result of the transactions contemplated by this Agreement will (either alone Transaction; however, the responsibility for COBRA compliance as to those employees belongs to the Multiemployer Plans, not CPPI or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the CodeBuyer.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Claridge Hotel & Casino Corp)
Employee Benefit Matters. (a) Section 3.20(a3.11(a) of the Sellers’ Disclosure Schedules contains a true and complete list of each Schedule lists: (i) all material “employee benefit plan” plans”, as that term is defined in Section 3(3) of ERISA, and (ii) other material pension, welfare benefit, bonus, incentive compensation, deferred compensation, severance, vacation, paid time off, salary continuation, life insurance, or educational assistance plans, programs or agreements, in each case, with respect to which any Seller and their Subsidiaries have any obligation or liability, contingent or otherwise, with respect to current or former employees of the Sellers and their Subsidiaries (the “Employee Plans”). All Employee Plans which are single employer plans or multiemployer plans and are subject to Title IV of ERISA or Section 412 of the Tax Code are separately identified in Section 3.11(a) of the Sellers’ Disclosure Schedule.
(whether b) A summary description of each Employee Plan has been made available to the Purchaser. Correct and complete copies of each Assumed Employee Plan and the following documents, if applicable, related thereto have been made available to the Purchaser: (A) the most recent trust agreement and all amendments thereto, (B) the most recent Forms 5500, (C) the most recent actuarial valuation, and (D) the most recent IRS determination letter.
(c) Each Assumed Employee Plan intended to qualify under Section 401 of the Tax Code has been determined by the IRS to be so qualified. Except as set forth in Section 3.11(c) of the Sellers’ Disclosure Schedule, to the Sellers’ Knowledge, nothing has occurred with respect to the operation of any such plan which could reasonably be expected to result in the revocation of such favorable determination.
(d) Except by reason of the automatic stay under the Bankruptcy Code or a stay pursuant to an Order of the Canadian Bankruptcy Court or as set forth in Section 3.11(d) of the Sellers’ Disclosure Schedule, each Assumed Employee Plan has been established, registered, invested, maintained and administered in all respects in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations (foreign and domestic), including ERISA and the Tax Code, which are applicable to such Assumed Employee Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Assumed Employee Plans have been timely made or accrued. Each Assumed Employee Plan intended to be qualified under Section 401(a) of the Tax Code and each trust intended to qualify under Section 501(a) of the Tax Code is so qualified and either: (1) has obtained a currently effective favorable determination notification, advisory and/or opinion letter, as applicable, as to its qualified status (or the qualified status of the master or prototype form on which it is established) from the IRS covering the amendments to the Tax Code effected by the Tax Reform Act of 1986 and all subsequent legislation for which the IRS will currently issue such a letter, and no amendment to such Assumed Employee Plan has been adopted since the date of such letter covering such Assumed Employee Plan that would adversely affect such favorable determination; or (2) still has a remaining period of time in which to apply for or receive such letter and to make any amendments necessary to obtain a favorable determination.
(e) Except as set forth in Section 3.11(e) of the Sellers’ Disclosure Schedule, the Sellers are not subject to any liability or penalty under Sections 4975 through 4980B of the Tax Code or Title I of ERISA. The Sellers have complied with all applicable health care continuation requirements in Section 4980B of the Tax Code and in ERISA. No “Prohibited Transaction”, within the meaning of Section 4975 of the Tax Code or Sections 406 or 407 of ERISA and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Assumed Employee Plan.
(f) Except as set forth in Section 3.11(f) of the Sellers’ Disclosure Schedule, the Sellers have not incurred nor could reasonably be expected to incur any material liability under Title IV of ERISA.
(g) Except as set forth in Section 3.11(g) of the Sellers’ Disclosure Schedule, there is no contract, plan or arrangement covering any employee or former employee of the Business that, individually or collectively, could give rise to the payment as a result of the Transactions of any amount that would not be deductible by reason of Section 280G of the Tax Code. For purposes of the foregoing sentence, the term “payment” shall include any payment, acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits.
(h) No action, suit or claim (excluding claims for benefits incurred in the ordinary course of business) has been brought or is pending or threatened against or with respect to any Assumed Employee Plan or the assets or any fiduciary thereof (in that Person’s capacity as a fiduciary of such Assumed Employee Plan). There are no audits, inquiries or proceedings pending or threatened by the IRS, the United States Department of Labor, or any other Governmental Authority with respect to any Assumed Employee Plan.
(i) Each Assumed Employee Plan that is a “nonqualified deferred compensation plan” (as defined for purposes of Section 409A(d)(1) of the Tax Code)
(1) has been operated since January 1, 2005 in good faith compliance, and since January 1, 2009 in full documentary and operational compliance, with Section 409A of the Tax Code and all applicable IRS guidance promulgated thereunder to the extent such plan is subject to ERISASection 409A of the Tax Code, and (2) as to any such plan in existence prior to January 1, 2005 and each other benefit agreementnot subject to Section 409A of the Tax Code, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability not been “materially modified” (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of IRS Notice 2005-1) at any time after October 3, 2004.
(j) Except as set forth in Section 3(23.11(j) of ERISA, whether the Sellers’ Disclosure Schedule or not subject to ERISA, as required by Section 411(d)(3) of the Tax Code in connection with a termination or partial termination of any plan Employee Plan intended to qualify under Section 401(a) of the Tax Code.
(b) With respect to each Benefit Plan, neither the Company has made available to Parent accurate, current execution and complete copies delivery of each this Agreement nor the consummation of the following: Transactions will (i) where result in any payment becoming due to any employee of the Benefit Plan has been reduced to writing, the plan document together with all amendmentsSellers or any of their Subsidiaries; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan termsincrease any benefits otherwise payable under any Employee Plan; or (iii) where applicable, copies result in the acceleration of the time of payment or vesting of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There If any Canadian Assumed Employee Plan is registered under the Income Tax Act (Canada) as a pension plan, such Canadian Assumed Employee Plan is not and has been no amendment tonever been, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicablea defined benefit pension plan.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Purchase Agreement
Employee Benefit Matters. (a) Schedule 2.11, attached hereto, identifies each Employee Benefit Plan. Purchaser has been furnished copies of the Employee Benefit Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof together with the three most recent annual reports (Form 5500 including, if applicable, Schedule B thereto) and the most recent actuarial valuation report prepared in connection with any Employee Benefit Plan. Neither the Companies nor any of their ERISA Affiliates have now, or have maintained in the past, any Employee Benefit Plan which is (i) a multiemployer plan, (ii) a Title IV Plan or (iii) Employee Benefit Plan maintained in connection with any trust described in Section 3.20(a501(c)(9) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” as that term is defined in Internal Revenue Code (the "Code").
(b) No transaction prohibited by Section 3(3) 406 of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by Section 4975 of the Company or Code has occurred with respect to any Employee Benefit Plan or arrangement which the Company is covered by Title I of ERISA which transaction has or may have will cause the Companies to incur any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of material liability under ERISA, whether the Code or not subject otherwise, excluding transactions effected pursuant to ERISA, and in compliance with a statutory or any plan administrative exemption.
(c) Each Employee Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period since its adoption; each trust created under any such Employee Benefit Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation. Purchaser has been provided with the most recent determination letter of the Internal Revenue Service relating to each such Employee Benefit Plan. Each Employee Benefit Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including ERISA and the Code.
(bd) With The Companies do not have any current or projected liability in respect to each Benefit Planof post-employment or post-retirement health or medical or life insurance benefits for retired, the Company has made available to Parent accurate, former or current and complete copies of each employees of the following: Companies.
(ie) where Except as disclosed in Schedule 2.11, attached hereto, there is no contract, plan or arrangement (written or otherwise) covering any employee or former employee of the Benefit Plan has been reduced Companies that, individually or collectively, could give rise to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies payment of any insurance policies amount that would not be deductible pursuant to the terms of Section 280G of the Code and contractsno employee or former employee of the Companies will become entitled to any bonus, administration agreements and retirement, severance, job security or similar agreements, now in effect benefit or required in the future enhanced such benefit (including acceleration of vesting or exercise of an incentive award) as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Codehereby.
(f) With respect to each Benefit PlanThere are no pending, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the knowledge of any Company’s Knowledge, or the Sellers, threatened Action relating or anticipated, claims under or with respect to a any Employee Benefit Plan, by any employee or beneficiary covered under any such Employee Benefit Plan, or otherwise involving such Employee Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Stock Purchase Agreement (Financial Industries Corp)
Employee Benefit Matters.
(a) Section 3.20(a) of the Company Disclosure Schedules contains a true Letter sets forth all Employee Benefit Plans. No Employee Benefit Plan is, and complete list none of each “employee benefit plan” as that term is defined in Section 3(3) of the Companies nor any ERISA (whether or not such plan is subject to ERISA) and each other benefit agreementAffiliate sponsors, programmaintains, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed contributes to, been required has any obligation to contribute to, or has, sponsored, maintained, contributed to or had any Liability with respect toobligation to contribute to (i) a “pension plan” under Section 3(2) of ERISA that is subject to Title IV of ERISA, any (ii) a Multiemployer Plan, (iii) a “employee pension benefit multiple employer plan” within the meaning of ERISA or an employee benefit plan subject to Section 3(2413(c) of the Code or (iv) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(b) The Companies have made all required contributions and have no liability to any such Employee Benefit Plan, other than liability for health plan continuation coverage described in Part 6 of Title I(B) of ERISA, whether and have complied in all material respects with all applicable Laws for any such Employee Benefit Plan.
(c) With respect to each Employee Benefit Plan, the Companies have made available to GGB true and complete copies of (i) each Employee Benefit Plan (or, if not written, a written summary of its material terms), including without limitation all plan documents, trust agreements, insurance contracts or other funding vehicles and all amendments thereto, (ii) all summaries and summary plan descriptions, including any summary of material modifications, (iii) the three (3) most recent annual reports (Form 5500 series) filed with the Department of Labor (with all schedules and attachments), (iv) the three (3) most recent actuarial reports or other financial statements relating to such Employee Benefit Plan, (v) the most recent determination or opinion letter, if any, issued by the IRS and any pending request for such a letter, (vi) the three (3) most recent nondiscrimination tests performed under the Code, (vii) all Contracts with any service provider with respect to any Employee Benefit Plan and (viii) all filings made with any Governmental Authority, including but not limited to any filings under the Employee Plans Compliance Resolution System or the Department of Labor Delinquent Filer Program. Each Employee Benefit Plan complies in all respects in form, and has in operation been administered in all material respects in accordance with, its terms and all applicable Laws, including ERISA and the Code, and all contributions required to be made under the terms of any Employee Benefit Plan have been timely made or, if required but not yet due, have been properly reflected on the most recent balance sheet contained in the Company Financial Statements. Except as set forth in Section 3.20(c) of the Company Disclosure Letter, with respect to each Employee Benefit Plan, all tax, annual reporting and other governmental filings required by ERISA and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants. With respect to the Employee Benefit Plans, no event has occurred and, to the Company’s Knowledge, there exists no condition or set of circumstances in connection with which any of the Companies could be subject to any material liability (other than for routine benefit liabilities) under the terms of, or with respect to, such Employee Benefit Plans, ERISA, the Code or any plan other applicable Law. There are no pending audits or investigations by any Governmental Authority involving any Employee Benefit Plan, and no threatened or pending claims (except for individual claims for benefits payable in the normal operation of the Employee Benefit Plans), or Actions involving any Employee Benefit Plan, any fiduciary thereof or service provider thereto. None of the Companies, the Transferors nor any ERISA Affiliate has any liability under Section 502 of ERISA. All contributions and payments to such Employee Benefit Plan are deductible under Section 162 or 404 of the Code.
(d) Each Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company Code has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) received a multiemployer planfavorable determination letter from the IRS as to its qualified status, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined may rely upon a favorable prototype opinion letter from the IRS, and each trust established in Section 3(2) of ERISA) connection with any Employee Benefit Plan that is or was subject intended to Title IV of ERISA or be exempt from federal income taxation under Section 412 or Section 430 501(a) of the Code is so exempt. To the Company’s Knowledge, no fact or Section 302 or Section 303 event has occurred that could cause the loss of ERISA. The Company has not participated in the qualified status of any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each such Employee Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and or the Code).
(e) Nothing has occurred with respect to exempt status of any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operationtrust. Each Employee Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates liability (other than liability for ordinary administrative expenses typically incurred in a termination event). The Company None of the Companies, nor to the Company's Knowledge, any other Person has no commitment any express or obligation and has not made any representations to any employee, officer, director, independent contractor or consultantimplied commitment, whether legally enforceable or not legally bindingnot, to adoptmodify, amend, modify change or terminate any Employee Benefit Plan Plan, other than with respect to a modification, change or termination required by ERISA or the Code.
(e) Neither the execution and delivery of any of the Transaction Documents, nor the consummation of the transactions contemplated by any of the Transaction Documents, either alone or in combination with any other event, will (i) entitle any current or former employee, consultant or director 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 (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit. No amount that could be received (whether in cash, property, the vesting of property or otherwise) as a result of or in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon in combination with any other event) or by any of the occurrence of other Transaction Documents, by any additional or subsequent events): (i) entitle any current or former directoremployee, officer, employee, independent contractor director or consultant other service provider of any of the Company to severance pay or any other payment; Companies who is a “disqualified individual” (iias such term is defined in Treasury Regulation Section 1.280G-1) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in could be characterized as an “excess parachute paymentspayment” (as defined in Section 280G(b)(1) of the Code).
(f) Other than continuation coverage as required under Section 601 to 608 of ERISA or applicable law, no Employee Benefit Plan provides any of the following retiree or post- employment benefits to any person: medical, disability or life insurance benefits.
(g) Each Employee Benefit Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 280G(b409A(d)(1) of the Code; or (vi) require a “gross-up” ), if any, has been maintained and operated in documentary and operational compliance with Section 409A of the Code. No payment pursuant to any Employee Benefit Plan or other payment arrangement to any “disqualified individualservice provider” within the meaning of (as such term is defined in Section 280G(c) 409A of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms would subject any Person to tax pursuant to Section 409A of the Stock Option Plan. No Options have been retroactively granted by the Company BoardCode, nor has the exercise price of any such Option been determined retroactivelywhether pursuant to this Agreement or otherwise.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a3.14(a) of the Reliant Disclosure Schedules contains Schedule sets forth a true complete and complete accurate list of each “employee benefit plan” as that term is defined in Section 3(3) of all U.S. Reliant Employee Plans. Neither Reliant nor any ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, Affiliate has any plan or arrangementcommitment to establish any new Reliant Employee Plan, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation to modify any Reliant Employee Plan (except to the extent required by Legal Requirements or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandingsto conform any such Reliant Employee Plan to any applicable Legal Requirements, in each such case, that is sponsored, maintained, administered or contributed case as previously disclosed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute toThermage in writing, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISAas required by this Agreement), or to adopt or enter into any plan intended to qualify under Section 401(a) of the CodeReliant Employee Plan.
(b) With respect to each Benefit Reliant Employee Plan, the Company Reliant has made available to Parent accurate, current Thermage complete and complete accurate copies of each of the following: (i) where the Benefit such Reliant Employee Plan has been reduced to writing, the plan document (or a written summary of any unwritten plan) together with all amendments; , (ii) where in the Benefit Plan has not been reduced case of any plan for which Forms 5500 are required to writingbe filed, a written summary of all material plan terms; the three most recent annual reports (Form 5500) with schedules attached, (iii) where applicable, copies in the case of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result plan that is intended to be qualified under Section 401(a) of the transactions contemplated by this Agreement Code, the most recent determination, opinion, notification or otherwise; advisory letter from the IRS, and correspondence to or from the IRS or the DOL with respect to such letter (iv) copies of any each trust agreement, group annuity contract, administration and similar material agreements, investment management or investment advisory agreements, (v) the most recent summary plan descriptionsdescriptions and employee handbook, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any or other similar written material employee communications relating to employee benefits matters, (vi) all personnel, payroll and employment manuals and policies, (vii) the most recent annual and periodic financial statements and other annual accounting of assets for each Reliant Employee Plan that is funded, (viii) all material correspondence to or a description of from any oral communications) governmental agency relating to any Benefit Plan; Reliant Employee Plan within the past two (2) years and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit three (3) most recent plan years’ discrimination tests for each Reliant Employee Plan.
(c) Each Reliant Employee Plan has been established, maintained and administered in all material respects in accordance with all applicable Legal Requirements, including if applicable, ERISA and the Code, and in accordance with its terms, and each of Reliant, Reliant’s Subsidiaries and their respective ERISA Affiliates have in all material respects met their obligations with respect to each Reliant Employee Plan and have timely made (or timely will make) all required contributions thereto.
(d) All Reliant Employee Plans that are intended to be qualified under Section 401(a) of the Code, and all trusts that are intended to be qualified under Section 501(a) of the Code (each, a “Reliant Qualified Plan”), have received determination, opinion or advisory letters from the Internal Revenue Service to the effect that such Reliant Employee Plans are qualified and the plans and trusts related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or Reliant has remaining a period of time under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such a letter and to make any amendments necessary to obtain a favorable determination as to the qualified status of each such Reliant Qualified Plan. No such determination, opinion or advisory letter has been revoked and, to the knowledge of Reliant, revocation has not been threatened, and no such Reliant Employee Plan has been amended or operated since the date of its most recent determination letter or application therefor in any respect, and no act or omission has occurred, that would reasonably be expected to adversely affect its qualification or materially increase its cost. No material “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Reliant Employee Plan.
(e) Neither the Company Reliant, any of Reliant’s Subsidiaries nor any of their respective ERISA Affiliate Affiliates has ever in the preceding six (6) years maintained, participated in or contributed to, had an obligation to (or been obligated to contribute to), or incurred any Liability can reasonably expect to have future material liability with respect to, either to (i) a “multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(404001(a)(3) of ERISA), (ii) a “multiple employer plan” as defined in ERISA or the Code, or (iii) a “funded welfare plan” within the meaning of Section 419 of the Code. No Reliant Employee Plan is funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. No Reliant Employee Plan provides health benefits that are not fully insured through an insurance contract.
(df) Each Benefit Plan has been establishedOther than as required under Section 601 et seq. of ERISA or equivalent state law, administered none of the Reliant Employee Plans promises or provides health or other welfare benefits (excluding normal claims for benefits under Reliant’s group life insurance, accidental death and maintained materially in accordance with its terms dismemberment insurance and in compliance with all applicable Laws (including ERISA disability plans and the Code)policies) or coverage to any person following retirement or other termination of employment.
(eg) Nothing has occurred with respect There is no material action, suit, proceeding, claim, arbitration, audit or investigation pending or, to any Benefit Plan that has subjected the knowledge of Reliant, threatened or could reasonably be expected to subject the Company or any of its ERISA Affiliates oranticipated, with respect to any period on Reliant Employee Plan or after the Closing Date, Parent or assets of any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Reliant Employee Benefit Plan, all payments due from other than claims for benefits in the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerordinary course.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans The negotiation or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISAwill not, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): in combination with another event, (i) entitle any current or former employee, director, officer, employee, independent contractor consultant or consultant officer of the Company Reliant or any Subsidiary of Reliant to severance pay pay, or any other payment; payment from Reliant or any of its Subsidiaries, or pursuant to any Reliant Employee Plan, (ii) accelerate the time of paymentdistribution, funding payment or vesting, a lapse of repurchase rights or increase the amount of compensation (including stock-based compensation) or benefits due to any such individual; employee, director or officer, (iii) limit result in the forgiveness of indebtedness, or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase trigger an obligation to fund benefits. Section 3.14(h) of the amount payable under Reliant Disclosure Schedule contains a complete and accurate list of each Reliant “disqualified individual” (as defined in Code Section 280G and the regulations thereunder). Except as set forth in Section 3.14(h) of the Reliant Disclosure Schedule, no payment or result in benefit which will or may be made by Reliant or its ERISA Affiliates with respect to any current or former employee or any other material obligation pursuant “disqualified individual” is reasonably expected to any Benefit Plan; (v) result in be characterized as a “excess parachute paymentspayment,” within the meaning of Section 280G(b280G(b)(2) of the Code; . There is no contract, agreement, plan or (vi) require arrangement to which Reliant or any ERISA Affiliates is a “gross-up” party or by which it is bound to compensate any current or former employee or other payment disqualified individual for excise taxes paid pursuant to any “disqualified individual” within the meaning of Section 280G(c) 4999 of the Code.
(ni) All Options have Each material nonqualified deferred compensation plan (as defined in Section 409A(d)(1) of the Code), if any, maintained or sponsored by Reliant has been duly authorized by the Company Board operated since January 1, 2005 in good faith compliance with the terms Section 409A of the Stock Option PlanCode and IRS Notice 2005-1. No Options have material nonqualified deferred compensation plan has been retroactively granted by “materially modified” (within the Company Boardmeaning of IRS Notice 2005-1) at any time after October 3, nor 2004.
(j) No Reliant Option, stock appreciation right or service provider warrant of Reliant (i) has the an exercise price that has been or may be less than the fair market value of the underlying equity as of the date such option or right was granted or (ii) has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or right.
(k) There is no Contract to which Reliant or any of its Subsidiaries is a party, including the provisions of this Agreement, covering any employee, consultant or director of Reliant or any of its Subsidiaries, which, individually or collectively, reasonably could be expected to give rise to the payment of any such Option been determined retroactivelyamount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code or that would give rise to a penalty under Section 409A of the Code.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Thermage Inc)
Employee Benefit Matters. (a) Section Schedule 3.20(a) of the Disclosure Schedules contains a true sets forth an accurate and complete list of each “employee benefit plan” (as that such term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreementplan, program, plan program or arrangement, including, without limitation, each arrangement providing benefits to current or former employees (including any bonus plan, plan for deferred compensation plancompensation, supplemental retirement, incentive compensation or retention planseverance, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plansick leave, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement health or arrangement and other welfare benefit plan or other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsoredarrangement), maintained, administered sponsored, or contributed to by the Company Company, or with respect to which the Company or any ERISA Affiliate has any liability or may have any Liability potential liability (eacheach such item, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company Sellers’ Representative has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, COBRA communications, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service and any legal opinions issued thereafter with respect to such Benefit Plan’s continued qualification; (vi) in the case of any Benefit Plan for which a Form 5500 must be filed, a copy of the two most recently filed Forms 5500, with all corresponding schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Neither Except as set forth in Section 3.20(c) of the Company nor Disclosure Schedules, each Benefit Plan and any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred related trust (other than any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or each a “multiple employer welfare arrangement” (as defined in Section 3(40Multiemployer Plan”)) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA , and the Code and any applicable local Laws). Each Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code (a “Qualified Benefit Plan”) is so qualified and received a favorable and current determination letter from the Internal Revenue Service with respect to the most recent five year filing cycle, or with respect to a prototype or volume submitter plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan or volume submitter plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) Nothing , and to each Seller’s Knowledge, nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. To each Seller’s Knowledge, nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(fd) With respect No pension plan (other than a Multiemployer Plan) which is subject to minimum funding requirements, including any multiple employer plan, (each, a “Single Employer Plan”) in which employees of the Company or any ERISA Affiliate participate or have participated has an “accumulated funding deficiency,” whether or not waived, or is subject to a lien for unpaid contributions under Section 303(k) of ERISA or Section 430(k) of the Code. No Single Employer Plan covering employees of the Company which is a defined benefit plan has an “adjusted funding target attainment percentage,” as defined in Section 436 of the Code, less than 80%. Except as set forth in Section 3.20(d) of the Disclosure Schedules, all benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(ge) All reports and disclosures Neither the Company nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Plans Guaranty Corporation; (iii) withdrawn from any Benefit Plan; (iv) engaged in any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA; (v) incurred taxes under Section 4971 of the Code with respect to any Single Employer Plan; or (vi) participated in a multiple employer welfare arrangement (MEWA).
(f) With respect to each Benefit Plan (i) no such plan is a Multiemployer Plan/except as set forth in Section 3.20(f) of the Disclosure Schedules, provided, however, if any such plan is a Multiemployer Plan (A) all contributions required to be filed with paid by the Company or furnished to a Governmental Authority or plan participants or beneficiaries its ERISA Affiliates have been prepared timely paid to the applicable Multiemployer Plan; (B) neither the Company nor any ERISA Affiliate has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied, and (C) a complete withdrawal from all such Multiemployer Plans on the Closing Date would not result in accordance any material liability to the Company and no Multiemployer Plan is in critical, endangered or seriously endangered status or has suffered a mass withdrawal; (ii) except as set forth in Section 3.20(f) of the Disclosure Schedules, no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; and (iv) no such plan or the plan of any ERISA Affiliate maintained or contributed to within the last six (6) years is a Single Employer Plan subject to Title IV of ERISA; and (v) no “reportable event,” as defined in Section 4043 of ERISA, with applicable Law and filed or furnished in accordance respect to which the reporting requirement has not been waived has occurred with applicable Law in a timely mannerrespect to any such plan.
(hg) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its termsterms and pursuant to applicable Law, without material liabilities to ParentBuyer, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Escept as set forth in Section 3.20(g) of the Disclosure Schedules, the Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(ih) Other Except as set forth in Section 3.20(h) of the Disclosure Schedules and other than as required by Section under Sections 601 et. seq. to 608 of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-post- termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(ji) There Except as set forth in Section 3.20(i) of the Disclosure Schedules, there is no pending or, to the Company’s each Seller's Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the five (5) years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kj) There has been no amendment to, announcement by each Seller, the Company or any of its their Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year (other than on a de minimis basis) with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l. Except as set forth in Section 3.20(j) Neither of the Company Disclosure Schedules, none of Sellers, the Company, nor any of its their Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement.
(k) Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. The Company does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(l) Each individual who is classified by the Company as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.
(m) Neither Except as set forth in Section 3.20(m) of the Disclosure Schedules and as required pursuant to applicable Law, neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend amend, or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a4.18(a) of the Disclosure Schedules contains a true and complete list of each material “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, arrangement including, without limitation, each bonus plan, deferred incentive compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, or paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to or required to be contributed to by Seller for the Company benefit of any employee of the Business who becomes employed by Xxxxx in connection with the transactions contemplated hereby or with respect to which the Company has Buyer or may any of its Affiliates would reasonably be expected to have any Liability as a result of the transactions contemplated hereby, contingent or otherwise (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit PlanPlan that provides benefits to an employee of the Business who will become employed by Xxxxx in connection with the transactions contemplated hereby, the Company Seller has made available to Parent Buyer accurate, current and complete copies of each of the following, as applicable: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of health plan benefits and coverage, and employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Planhandbooks; and (vii) copies in the case of material noticesCoilplus, letters Inc. Retirement Plan and Trust, the savings plan of Seller from which rollovers described in Section 6.03(g) may be made (“Seller’s Savings Plan”), a copy of the most recent determination, opinion or other correspondence advisory letter from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit PlanIRS.
(c) Neither the Company Seller nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, unsatisfied liability under Title IV or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) Section 302 of ERISA or (ii) an employee pension benefit Section 412 of the Code or with respect to any multiemployer plan (as defined in Section 3(23(37) or Section 4001(a)(3) of ERISA) and to no condition exists that is or was subject presents a material risk to Title IV Buyer of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in incurring any union-sponsored multiemployer welfare benefit fund maintained pursuant such liability with respect to any “employee welfare benefit plan” as defined in Section 3(1) plan of Seller or any ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA)Affiliate.
(d) Each Benefit Plan Neither Seller nor any ERISA Affiliate has been established, administered and maintained materially engaged in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code)any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA.
(e) The Seller’s Savings Plan is intended to qualify under Section 401(a) of the Code and is so qualified, and its related trust is tax-exempt under the Code. Seller has received a favorable determination letter or, if such plan is a prototype or volume submitter plan, is entitled to rely on a favorable opinion or advisory letter from the IRS, to the effect that such plan is so qualified and its related trust is tax-exempt under the Code. Any such determination, opinion or advisory letter from the IRS remains in effect and has not been revoked. Nothing has occurred with respect to since the date of any Benefit Plan such determination that has subjected or could would reasonably be expected to subject the Company affect adversely such qualification or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Codeexemption.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a3.18(a) of the Disclosure Schedules contains a true and complete list of each written pension, benefit, retirement, profit-sharing, deferred compensation, incentive, performance award, phantom equity or other equity, change in control, retention, severance, vacation, paid time off, fringe-benefit and other similar agreement, plan, policy, program or arrangement, in each case whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability ERISA (each, a “Benefit Plan”). The Company , which is or has never adopted, entered into, been during the past six years maintained, sponsored, contributed to, been or required to contribute tobe contributed to by a Company or any Company Subsidiary (i) for the benefit of any current or former employee, retiree, independent contractor, consultant, member or manager of a Company or any Company Subsidiary or any spouse or dependent of such individual, (ii) under which a Company or any Company Subsidiary has or may have any Liability, or had any Liability (iii) with respect toto which Buyer or any of its Affiliates would reasonably be expected to have any material Liability, contingent or otherwise (each Benefit Plan described in this sentence, a “Company Benefit Plan”). Each Company Benefit Plan (other than any “employee pension benefit plan” multiemployer plan within the meaning of Section 3(23(37) of ERISA) has been established, whether or not administered and maintained in all material respects in accordance with its terms and in compliance with all applicable Laws. None of the welfare Company Benefit Plans that are subject to ERISA, or any plan intended to qualify under Section 401(a) of the CodeERISA are self insured.
(b) With respect to each Company Benefit Plan, the Company Seller has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwiseAgreement; (iviii) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Company Benefit Plan; (iv) in the case of any Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (v) in the case of any Company Benefit Plan for which a Form 5500 is required to be filed, a copy of the most recently filed Form 5500, with schedules attached; (vi) actuarial valuations and reports related to any Company Benefit Plans with respect to the two most recently completed plan years; and (vvii) copies of material notices, letters or other correspondence from the Internal Revenue Service, Service or Department of Labor, Department of Health and Human Services, or other Governmental Authority Labor relating to the Company Benefit Plan.
(c) Neither the Each Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) Benefit Plan that is or was subject intended to Title IV of ERISA or be qualified under Section 412 or Section 430 401(a) of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or (a “multiple employer welfare arrangement” (as defined in Section 3(40Qualified Benefit Plan”) of ERISA).
(d) Each is so qualified and has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype or volume submitter plan, can rely on an opinion letter from the Internal Revenue Service to the prototype or volume submitter plan sponsor, to the effect that such Qualified Benefit Plan has been established, administered is so qualified and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) , and nothing has occurred that could reasonably be expected to cause the revocation of such determination letter from the Internal Revenue Service or the unavailability of reliance on such opinion letter from the Internal Revenue Service, as applicable, nor has such revocation or unavailability been threatened. Nothing has occurred with respect to any Company Benefit Plan that has subjected or could reasonably be expected to subject the a Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a material penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to material tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f) With respect . All benefits, contributions and premiums relating to each Company Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Company Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any such unfunded Company Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(gd) All reports and disclosures Neither of the Companies nor any Company Subsidiaries has incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I of ERISA or related provisions of the Code or foreign Law relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manneremployee benefit plans.
(he) There exists no condition that would No Company Benefit Plan is (i) subject the Company to any Liability under the terms Title IV of ERISA or Section 412 of the Benefit Plans Code or applicable Law relating thereto other than any payment (ii) a “multiemployer plan” within the meaning of benefits in the normal course Section 3(37) of plan operationERISA. Each No Company Benefit Plan can be amended, terminated or otherwise discontinued after is a “multiple employer plan” within the Closing in accordance with its terms, without material liabilities to Parent, the Company or any meaning of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation Section 413(c) of the transactions contemplated by this Agreement Code or otherwisea “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kf) There has been no amendment to, announcement by the Company Seller or any of its Affiliates Company relating to, or change in employee participation or coverage under, any Company Benefit Plan that would materially increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year (customary increases in cost of service excluded) with respect to any directormember, officermanager, employee, consultant or independent contractor or consultantcontractor, as applicable.
(l) Neither . None of Seller, the Company nor Companies, or any of its Affiliates their Company Subsidiaries has any commitment or obligation or has made any representations since January 1, 2015, to any directormember, officermanager, employee, consultant or independent contractor or consultantcontractor, whether or not legally binding, to adopt, amend, amend or modify or terminate any Company Benefit Plan.
(mg) Neither Each Company Benefit Plan that is subject to Section 409A of the execution Code has been operated in all material respects in compliance with such section and all applicable regulatory guidance (including notices, rulings and final regulations).
(h) No Company Benefit Plan will be terminated as a result of this Agreement nor any the consummation of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the CodeAgreement.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a) 2.16 of the Disclosure Schedules contains Schedule sets forth a true and complete list of each “"employee benefit plan” " (as that term is defined in by Section 3(3) of ERISA (whether ERISA), and any other bonus, profit sharing, pension, compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, post-retirement, scholarship, disability, sick leave, vacation, individual employment, commission, bonus, payroll practice, retention, or not such plan is subject to ERISA) and each other benefit plan, agreement, programpolicy, plan trust fund or arrangement, including, without limitation, arrangement (each bonus such plan, deferred compensation planagreement, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement trust fund or arrangement is referred to herein as an "Employee Benefit Plan", and other similar planscollectively, programs, agreements, arrangements or understandings, in each such case, the "Employee Benefit Plans") that is sponsored, maintained, administered for the benefit of (i) directors or contributed to by employees of the Company or the Subsidiary, (ii) former directors or employees of the Company or the Subsidiary or any other persons formerly performing services for the Company or the Subsidiary, and/or (iii) beneficiaries of anyone described in (i) or (ii) (collectively, the "Company Employees") or with respect to which the Company or any "ERISA Affiliate" (hereby defined to include any trade or business, whether or not incorporated, other than the Company, which has employees who are or may have been at any Liability date of determination occurring within the preceding three years, treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Internal Revenue Code as employees of a single employer which includes the Company) has any obligation on behalf of any employee of the Company. 790603v7
(eachb) Except as disclosed in Section 2.16 of the Disclosure Schedule, each Employee Benefit Plan is in material compliance with the provisions of ERISA and the provisions of the Internal Revenue Code applicable to it. The Shareholder has made available to the Purchaser a “Benefit true and complete copy of each Plan and a true and complete copy of the following documents, to the extent applicable, prepared in connection with each such Plan”: (i) the most recently received IRS determination letter, and (ii) the most recently prepared financial statement (Form 5500's with attachments). The Neither the Company nor any ERISA Affiliate has never adopted, entered into, maintained, sponsored, maintained or contributed to, been required to contribute to, any plan subject to the minimum funding standards of Section 302 of ERISA or had Section 412 of the Internal Revenue Code and/or any Liability with respect to, any “employee "multiemployer plan" (as defined by Section 3(37) of ERISA). All Employee Benefit Plans which are "pension benefit plan” within the meaning of plans" as defined in Section 3(2) of ERISA, whether or not subject ERISA have received favorable determination letters from the Internal Revenue Service ("IRS") as to ERISA, or their tax-qualified status and the tax-exempt status of any plan intended to qualify related trust under Section Sections 401(a) and 501 of the Internal Revenue Code, respectively, which determinations are currently in effect.
(bc) With respect to each Benefit PlanOther than as may otherwise be provided hereunder (including, the Company has made available to Parent accuratebut not by way of limitation, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writingArticle 4 hereof), the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writingPurchaser shall not, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement Agreement: (i) become liable for any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost, assessment or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications type of liability or expense of Seller or any ERISA Affiliate (or a description of any oral communicationsincluding predecessors thereof) relating with regard to any Employee Benefit Plan or any Employee Benefit Plan sponsored, maintained or contributed to by an ERISA Affiliate (including predecessors thereof) (assuming a like definition of "Employee Benefit Plan; " were applicable to ERISA Affiliates as to those same types of agreements, policies, trusts, funds and arrangements sponsored, maintained or contributed to by them) (v) copies each such plan of material noticesan ERISA Affiliate, letters an "ERISA Affiliate Employee Benefit Plan"), including, without limitation withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA, liabilities to the Pension Benefit Guaranty Corporation, or other correspondence from liabilities under Section 412 of the Internal Revenue Service, Department Code or Section 302(a)(2) of Labor, Department of Health and Human ServicesERISA, or other Governmental Authority relating (ii) be or become a party to the any Employee Benefit Plan or any ERISA Affiliate Employee Benefit Plan.
(cd) The Company, each ERISA Affiliate, each Employee Benefit Plan and each Employee Benefit Plan "sponsor" or "administrator" (within the meaning of Section 3(16) of ERISA) has complied in all material respects with the applicable requirements of Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Internal Revenue Code.
(e) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either maintains (i) a multiemployer plan, as such term is defined any employee benefit plan of the type described in Sections 3(37) 4063 and 4064 of ERISA or 4001(a)(3in Section 413(c) of ERISA the Internal Revenue Code (and regulations promulgated thereunder), or (ii) an employee pension benefit any plan (as defined in Section 3(2) of ERISA) that is which provides health, life insurance, accident or was subject other "welfare-type" benefits to Title IV of ERISA current or Section 412 future retirees or Section 430 of the Code current or Section 302 future former employees, their spouses or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been establisheddependents, administered and maintained materially other than in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Internal Revenue Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefitsstate continuation coverage law. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.790603v7
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a) 3.12 of the Disclosure Schedules contains a true Schedule lists (i) all employee welfare benefit plans, employee pension benefit plans, and complete list of each “employee benefit plan” plans (as that term is defined in Section 3(3) of ERISA Sections 3(1), (whether or not such plan is subject to ERISA2) and each other benefit agreement(3), programrespectively, plan or arrangementof the Employee Retirement Income Security Act of 1974, includingas amended (“ERISA”)), without limitationand all bonus, each bonus planincentive, deferred compensation plancompensation, retiree medical or life insurance, supplemental retirement, incentive compensation severance or retention planother benefit plans, equity purchase planprograms or arrangements, equity option planand all material employment, equity appreciation right plan, phantom equity plan, vacation policy or plantermination, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, contracts or agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by which the Company or the Subsidiary is a party, with respect to which the Company or the Subsidiary has any obligation or may have which are maintained, contributed to or sponsored by the Company or the Subsidiary for the benefit of any Liability current or former employee, officer or director of the Company or the Subsidiary, whether written or unwritten, (eachii) each employee benefit plan for which the Company or the Subsidiary could incur liability under Section 4069 of ERISA in the event such plan has been or were to be terminated, a (iii) any plan in respect of which the Company or the Subsidiary could incur liability under Section 4212(c) of ERISA and (iv) any -29- material contracts, arrangements or understandings between the Company or the Subsidiary or any of their Affiliates and any employee of the Company or the Subsidiary (collectively, the “Benefit PlanPlans”). The Except as set forth on Section 3.12 of the Disclosure Schedule, the Company has never adoptedfurnished a true, entered intocorrect and complete copy of the document for each Plan and all related materials that it has, maintained, sponsored, contributed including but not limited to, trust agreements, insurance contracts, policies and related insurer documents, determination letters from the Internal Revenue Service (and, if a request for such a letter is pending, a copy of such request), summary plan descriptions, the last three years’ Form 5500s, written summaries of any non-written Company Plan and the most recent actuarial statements and financial statements, as applicable. Except for the retention bonuses set forth on Section 3.12 of the Disclosure Schedule, the Company does not have any obligation for any bonus, severance or other payment payable in connection with a change of control of the Company or the Subsidiary.
(b) Each Plan (i) is and has been required operated in all material respects in accordance with its terms and the requirements of all applicable Laws, (ii) is and has been operated in such a manner as to contribute toqualify, or had any Liability where appropriate, for both federal and state purposes, for income Tax exclusions to its participants, Tax exempt income for its funding vehicle, and the allowance of deductions with respect toto contributions thereto, any “employee pension benefit plan” within the meaning of Section 3(2(iii) of ERISA, whether or not subject to ERISA, or any plan that is intended to qualify be qualified under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company Code has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, received a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence determination from the Internal Revenue ServiceService that such Plan is so qualified, Department of Laborand to Company’s Knowledge, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing nothing has occurred since the date of such determination that would cause such determination letter to become unreliable, and (iv) has no Liabilities with respect to ERISA or the Code, nor do any Benefit Plan circumstances exist that has subjected or could would reasonably be expected to subject the Company or result in, any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books Liabilities. Each of the Company and, to and the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums Subsidiary has performed all material obligations required to be paid for each insurance policy funding all performed by it under, is not in any material respect in default under or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paidmaterial violation of, accrued or otherwise adequately reserved and to the extent required byCompany’s Knowledge, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation there is and has not made been no material default or violation by any representations to party to, any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 etPlan. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There No Action is no pending or, to the Company’s Knowledge, threatened Action relating with respect to any Plan (other than claims for benefits in the ordinary course) and, to the Company’s Knowledge, no fact or event exists that could give rise to any such Action.
(c) None of the Company, the Subsidiary or any ERISA Affiliate has at any time participated in or made contributions to or had any other liability with respect to, any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) which is (i) a Benefit “multiemployer plan” (within the meaning of Section 3(37) of ERISA), or (ii) subject to Section 302 or Title IV of ERISA or Section 412 of the Code.
(d) Neither the Company nor, to the Company’s Knowledge any Company Plan fiduciary (as defined in ERISA Section 3(21)) has engaged in any transaction in violation of ERISA Section 406(a) and (b) (for which no exemption exists under ERISA Section 408) or any “prohibited transaction” (as defined in Section 4975(c)(2) or Section 4975(d) of the Code).
(e) No Plan of the Company or the Subsidiary provides medical, health, life insurance or other welfare type benefits to retirees or former employees or individuals who terminate (or have terminated) employment with the Company, the Subsidiary or any ERISA Affiliate, or the spouses or dependents of any of the foregoing, except for limited continued medical benefit coverage for former employees, their spouses and other dependents as required to be provided under -30- Section 4980B of the Code or Part 6 of Subtitle B of Title I of ERISA (COBRA) or applicable similar state Law. The Company has not established, maintained or contributed to, or had any obligation to establish, maintain or contribute to (i) a multiple employer welfare arrangement within the meaning of Section 3(40)(A) of the Code; or (ii) a voluntary employees beneficiary association within the meaning of Section 501(c)(9) of the Code.
(f) All contributions and premium payments (including all employer contributions and employee salary reduction contributions) that are due have been made within the time periods prescribed by ERISA and the Code, or guidance issued thereunder, to each Plan of the Company and the Subsidiary, and all contributions and premium payments for any period ending on or prior to the Closing Date that are not yet due have been made to each Plan of the Company and the Subsidiary, or accrued in accordance with past custom and practice.
(g) All required reports, descriptions and disclosures have been filed or distributed appropriately and in accordance with applicable law with respect to each Plan. The requirements of Part 6 of Subtitle B of Title 1 of ERISA and of Section 4980B of the Code has been met in all material respects with respect to each Plan that is a group health plan.
(h) There are no unresolved claims, proceedings, audits, investigations or disputes under the terms of, or in connection with, any Plan (other than routine undisputed claims for benefits), and no action, legal or otherwise, has been commenced with respect to any such claim, proceeding, audit, investigation or dispute.
(i) The Company does not have and, to the Company’s Knowledge, no fiduciary has, any Liability for breach of fiduciary duty or any failure to act or comply in connection with the administration or investment of the assets of any Plan.
(j) No actions with respect to the administration or the investment of the assets of any Plan (other than routine claims for benefits)) is pending or, and to the Company’s Knowledge, threatened and, to Company’s Knowledge, there is no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by basis for any Governmental Authoritysuch Action.
(k) There has been no amendment to, announcement No amount paid or payable by the Company or any of its Affiliates relating to, or change ERISA Affiliate in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year connection with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company hereby would reasonably be expected to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due give rise to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in an “excess parachute paymentspayment” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) 280G of the Code.
(nl) All Options No Plan and no grants, awards or benefits thereunder are subject to Section 409A of the Code or, if subject to Section 409A of the Code, have been duly authorized by failed, in form or operation, to meet the requirements of Section 409A of the Code and Treasury regulations and all other applicable guidance promulgated thereunder. There is no Plan to which the Company Board in compliance with or any ERISA Affiliate is a party covering any employee that could require the terms Company or any ERISA Affiliate to compensate any employee for Tax-related payments under Section 409A of the Stock Option Plan. No Options have been retroactively granted by Code (or any similar state Law) or excise Taxes paid pursuant to Section 4999 of the Company Board, nor has the exercise price of any such Option been determined retroactivelyCode.
Appears in 1 contract
Employee Benefit Matters. a. To the best of Seller’s Knowledge, Schedule 3.16
(a) Section 3.20(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, equity or equity- based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by Seller for the Company benefit of any current or with respect to former employee, officer, governor, retiree, independent contractor or consultant of Seller or any spouse or dependent of such individual, or under which the Company Seller has or may have any Liability and which was existing at least thirty (30) Business Days prior to the Closing Date (as listed on Schedule 3.16(a), each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) b. With respect to each Benefit Plan, the Company Seller has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies in the case of material noticesany Benefit Plan that is intended to be qualified under Section 401(a) of the Code, letters a copy of the most recent determination, opinion or other correspondence advisory letter from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.;
Appears in 1 contract
Employee Benefit Matters. (a) All employee or director benefit plans, arrangements or agreements, whether or not written, including without limitation any employee welfare benefit plan within the meaning of Section 3.20(a3(1) of the Disclosure Schedules contains a true and complete list Employee Retirement Income Security Act of each “1974, as amended ("ERISA"), any employee pension benefit plan” as that term is defined in plan within the meaning of Section 3(33(2) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreementany bonus, program, plan or arrangement, including, without limitation, each bonus planincentive, deferred compensation plancompensation, supplemental retirementvacation, incentive compensation stock purchase, stock option, severance, employment, change of control or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death fringe benefit plan, cafeteria program or agreement that is or has since January 1, 1994 (or prior to such date if such plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement program or arrangement and other similar plans, programs, agreements, arrangements could result in any liability of the Company or understandings, in each such case, that is any Subsidiary after the date of this Agreement) been sponsored, maintained, administered maintained or contributed to by for the benefit of any current or former employee or director of the Company or with respect to which any Subsidiary are listed in Section 3.11(a) of the Company has or may have Disclosure Schedule (the "COMPANY BENEFIT PLANS"). True and complete copies of (i) the Company Benefit Plans (or, in the case of any Liability (eachunwritten Company Benefit Plan, a “description thereof) and any amendment thereto, (ii) the most recent summary plan description (or similar document) for each Company Benefit Plan”, (iii) the three most recent Annual Reports (Form 5500 Series) and accompanying schedules, if any, and (iv) the most recent determination letter from the IRS (if applicable) for such Company Benefit Plan have been made available to the Purchaser.
(b) Except as set forth in Section 3.11(b) of the Company Disclosure Schedule, (i) each Company Benefit Plan has been maintained and administered in all material respects in compliance with its terms and with all applicable laws including, but not limited to, ERISA, and the Internal Revenue Code of 1986, as amended (the "CODE"). The ; (ii) each Company Benefit Plan intended to be qualified under Section 401(a) of the Code has never adoptedbeen determined by the Internal Revenue Service (the "IRS") to be so qualified (or such qualification is pending, entered intoor such plan is maintained under a prototype plan approved by the IRS), maintainedand, sponsoredto the knowledge of the Company, no event has occurred that could reasonably be expected to adversely affect the qualified status of such Company Benefit Plan; (iii) neither the Company nor any of its Subsidiaries has incurred or is reasonably likely to incur any liability or penalty under Sections 4975 or 4976 of the Code or Sections 409 or 502(i) of ERISA; (iv) there are no pending, nor has the Company or any of its Subsidiaries received notice of any threatened, claims against or otherwise involving any of the Company Benefit Plans (other than routine claims for benefits); (v) no Company Benefit Plan is under audit or investigation by the IRS, the Department of Labor or the Pension Benefit Guaranty Corporation, and to the knowledge of the Company, no such audit or investigation is pending or threatened; (vi) all contributions or other payments required to be made as of the date of this Agreement to or pursuant to the Company Benefit Plans have been made or accrued for in the Company's Financial Statements; (vii) neither the Company nor any entity under "common control" with the Company within the meaning of Sections 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA ("ERISA Affiliate") has at any time contributed to, or been required to contribute to, or had any Liability with respect to, any “employee "pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan " (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in Code, including without limitation, any union"multi-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit employer plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” " (as defined in Section 3(40Sections 3(37) and 4001(a)(3) of ERISA) (a "Multiemployer Plan").
; (dviii) Each no Company Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to is subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements laws of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto jurisdiction other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
United States; (iix) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates Subsidiaries has any Liability to provide post-termination or obligation for retiree health or life benefits; (x) the Company or its Subsidiaries may amend or terminate any of the Company Benefit Plans without incurring any liability thereunder; (xi) all amounts of deferred compensation benefits under any Company Benefit Plan have been properly accrued on the Financial Statements of the Company and its Subsidiaries to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, required under GAAP; and (xii) each Company Benefit Plan has been operated in compliance in all material respects which is an "employee welfare benefit plan" within the meaning of Section 3(1) of ERISA is either insured pursuant to a contract of insurance whereby the insurance company bears any risk of loss with COBRA and other similar applicable Lawrespect to such claims or covered under a contract with a health maintenance organization (an "HMO") pursuant to which the HMO bears the liability for such claims.
(jc) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject Except as set forth in Section 3.11(c) of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating toDisclosure Schedule, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level consummation of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or Transactions will not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): ) (i) entitle constitute an event under any Company Benefit Plan, trust, or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former director, officer, employee, independent contractor officer or consultant director of the Company to severance pay or any other payment; Subsidiary, or (ii) accelerate result in the time triggering or imposition of payment, funding any restrictions or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict limitations on the right of the Company or the Purchaser to merge, amend or terminate any Company Benefit Plan; (ivPlan and receive the full amount of any excess assets remaining or resulting from such amendment or termination, subject to applicable taxes. Except as set forth in Section 3.11(c) increase of the amount payable under Company Disclosure Schedule, no payment or result in benefit which will or may be made by the Company, any other material obligation pursuant of its Subsidiaries, the Purchaser or any of their respective affiliates with respect to any Benefit Plan; (v) result in “employee, officer or director of the Company or its Subsidiaries will be characterized as an "excess parachute payments” payment," within the meaning of Section 280G(b280G(b)(1) of the Code; , and no amount of any such payment or (vi) require a “gross-up” or other payment benefit will fail to any “disqualified individual” within be deductible by the meaning Company by reason of Section 280G(c162(m) of the Code.
(nd) All Options Except as set forth in Section 3.11(d) of the Company Disclosure Schedule, with respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (ii) the fair market value of the assets of each such Company Benefit Plan equals or exceeds the actuarial present value of all accrued benefits under such Plan (whether or not vested), based upon the actuarial assumptions used to prepare the most recent actuarial report for such Plan; (iii) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the consummation of the transactions contemplated by this agreement will not result in the occurrence of any such reportable event; (iv) all premiums to the Pension Benefit Guaranty Corporation (the "PBGC") have been duly authorized timely paid in full; (v) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by the Company Board in compliance with or its Subsidiaries; and (vi) the terms PBGC has not instituted proceedings to terminate any such Company Benefit Plan and, to the Company's and each of its Subsidiary's knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Company Benefit Plan.
(e) None of the Stock Option Company and its Subsidiaries nor any ERISA Affiliate has incurred any "withdrawal liability" (as defined in Part I of Subtitle E of Title IV of ERISA) ("Withdrawal Liability"), as a result of a complete or partial withdrawal from a Multiemployer Plan, that has not been satisfied in full. No Options have been retroactively granted by With respect to each Company Benefit Plan that is a Multiemployer Plan: (i) if the Company Boardor any of its Subsidiaries or any of their respective ERISA Affiliates were to experience a withdrawal or partial withdrawal from such plan, no Withdrawal Liability would be incurred that would have a Company Material Adverse Effect; and (ii) none of the Company and its Subsidiaries, nor any of their respective ERISA Affiliates has received any notification, nor has the exercise price of any reason to believe, that any such Option Company Benefit Plan is in reorganization, has been determined retroactivelyterminated, is insolvent, or may reasonably be expected to be in reorganization, to be insolvent, or to be terminated.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aSchedule 3.17(a) of the Disclosure Schedules contains a true and complete list of each lists all “employee benefit planplans,” as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974, as amended (whether or not such plan is subject to “ERISA”) and each all other benefit agreementretirement, programpension, plan or arrangementprofit sharing, includingbonus, without limitationstock, each bonus planrestricted stock, stock option, stock purchase, equity-based, profits interest, phantom equity, employment, service, retainer, compensation, consulting, change in control, welfare, health, life, disability, group insurance, savings, deferred compensation plan, supplemental retirementcompensation, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance programcompensation, paid time off policyoff, employment agreementseverance, consulting agreementsalary continuation, retention incentive agreementretention, noncompetition agreementindemnification and fringe benefit agreements, confidentiality agreementarrangements, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreementsContracts, arrangements policies, or understandings, in each such case, that is sponsored, practices maintained, administered contributed to, or required to be contributed to by any Seller Party or any ERISA Affiliate for the Company benefit of any current or former employee, officer, manager, member, partner or independent contractor of any Seller Party or with respect to which the Company has any Seller Party or any ERISA Affiliate may have any Liability (each, a the “Benefit PlanPlans”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within In the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies case of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or ERISA, Schedule 3.17(a) discloses whether such plan is (i) unfunded, (ii) funded through a “multiple employer welfare arrangementbenefit fund,” (as such term is defined in Code Section 3(40419(e), or other funding mechanism or (iii) of ERISA)insured.
(db) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates orAs applicable, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, each Seller Party has delivered or made available to Xxxxx’x Buyer true and complete copies of (i) all payments due plan documents (including all amendments and modifications thereof) and in the case of an unwritten Benefit Plan, a written description thereof, (ii) the current summary plan description and each summary of material modifications thereto, (iii) the most recent Internal Revenue Service (“IRS”) determination, advisory or opinion letter and (iv) all communications, records, notices and filings received from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, sent to the extent required by GAAPIRS, adequate reserves are reflected on the financial statements Department of the Company for such amounts. All premiums required to be paid for each insurance policy funding all Labor or any portion of the benefits under any Pension Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAPGuaranty Corporation.
(gc) All reports Each Seller Party and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its each ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, Affiliate are each Benefit Plan has been operated in compliance in all material respects with COBRA the provisions of ERISA, the Code and all other similar Laws applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Plans. Each Benefit Plan has been maintained, operated and administered in compliance in all material respects with its terms and any related documents or agreements and the subject applicable provisions of an examination ERISA, the Code and all other Laws. Each Seller Party and each ERISA Affiliate has timely and accurately satisfied its reporting obligations under Sections 6055 and 6056 of the Code. None of the Seller Parties, any ERISA Affiliate, nor any Employee Benefit Plan fiduciary has, with respect to the Employee Benefit Plans, engaged in a breach of fiduciary duty or audit a non-exempt “prohibited transaction,” as such term is defined in Section 4975 of the Code or Section 406 of ERISA. No Benefit Plan provides for or continues medical or health benefits, or life insurance or other welfare benefits (through insurance or otherwise) for any Person or any dependent or beneficiary of any Person beyond termination of service or retirement other than coverage mandated by Law, and neither Seller Parties nor any ERISA Affiliate has made a Governmental Authority written or the subject of an application oral promise, or filing under or is a participant incommunication that could reasonably be expected to promise, an amnesty, voluntary compliance, self-correction or similar program sponsored by to any Governmental AuthorityPerson to provide any such benefits.
(kd) There has All contributions (including all employer contributions and employee salary reduction contributions) and premium payments which are or have been no amendment to, announcement by the Company due have been paid to or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to each Benefit Plan within the time required by law. All required or discretionary (in accordance with historical practices) payments, premiums, contributions, reimbursements, or accruals for all periods ending prior to or as of the Closing Date shall have been made or properly accrued on the Interim Balance Sheet or will be properly accrued on the books and records of each Seller Party and each ERISA Affiliate as of the Closing Date. None of the Benefit Plans has any director, officer, employee, independent contractor unfunded liabilities which are not reflected on the Interim Balance Sheet or consultant, as applicable.
(l) Neither the Company books and records of each Seller Party and each ERISA Affiliate. None of Seller Parties nor any of its Affiliates ERISA Affiliate has any commitment assets subject to (or obligation or has made any representations expected to any director, officer, employee, independent contractor or consultant, whether or not legally binding, be subject to) a lien for unpaid contributions to adopt, amend, modify or terminate any Benefit Plan.
(me) No Benefit Plan is (or at any time has been) subject to Part 3, Subtitle B of Title I of ERISA, Title IV of ERISA or Code Section 412. Neither the execution of this Agreement Seller Parties nor any ERISA Affiliate (i) has ever contributed to, or been required to contribute to any “multiemployer plan” (as defined in Section 3(37) of ERISA) and (ii) has ever had any Liability (contingent or otherwise) relating to a multiemployer plan.
(f) None of the Benefit Plans, nor any trust created thereunder, now holds or has heretofore held as assets any stock or securities issued by the any Seller Party or any ERISA Affiliate.
(g) All Benefit Plans which are “employee pension benefit plans” within the meaning of Section 3(2) of ERISA and which are intended to meet the qualification requirements of Code Section 401(a) now meet, and at all times since their inception have met, the requirements for such qualification, and the related trusts are now, and at all times since their inception have been, exempt from taxation under Code Section 501(a). Each Benefit Plan that is intended to be qualified under Code Section 401(a) has received a favorable determination letter (or an opinion or advisory letter on which it is entitled to rely) from the IRS that such Benefit Plan is qualified under Code Section 401(a). No event has occurred that will or could give rise to the revocation of any applicable determination letter or the loss of the right to rely on any applicable opinion or advisory letter, or the disqualification or loss of tax-exempt status of any such Benefit Plan or trust under Code Sections 401(a) or 501(a).
(h) Seller Parties’ and each Shareholder’s execution of, and performance of the transactions contemplated by by, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events): ) result in any payment, acceleration, vesting or increase in benefits with respect to any Person. No payment which is or may be made with respect to any Person, either alone or in conjunction with any other payment, event or occurrence will or could properly be characterized as an “excess parachute payment” under Code Section 280G. No Assumed Liability is an obligation to make a payment that is not deductible under Code Section 280G. No Person is entitled to receive any additional payment (including any tax gross-up or other payment) as a result of the imposition of the excise taxes required by Code Section 4999.
(i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of Each Benefit Plan that constitutes a “non-qualified deferred compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute paymentsplan” within the meaning of Code Section 280G(b409A, complies (and has at all relevant times complied) in both form and operation with the requirements of Code Section 409A so that no amounts paid pursuant to any such Benefit Plan is subject to tax under Code Section 409A; and neither Seller Parties nor any ERISA Affiliate is or has been required to report any Taxes due as a result of a failure of a Benefit Plan to comply with Code Section 409A. With respect to each Benefit Plan, neither Seller Parties nor any ERISA Affiliate has any indemnity obligation for any Taxes or interest imposed or accelerated under Code Section 409A.
(j) Each Seller Party and each ERISA Affiliate has, for each month in which it has been an “applicable large employer member” under Section 4980H of the Code, offered “minimum essential coverage” (as defined in Section 5000A of the Code) which satisfies the affordability and minimum value standards under Section 4980H of the Code to: (i) all common law employees who must be treated as “full-time employees” under Section 4980H of the Code; and (ii) the dependents of such employees. Neither Seller Parties nor any ERISA Affiliate have been assessed a penalty under Section 4980H of the Code and no such penalty is pending, threatened, anticipated, or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) should reasonably be anticipated. Seller Parties and each ERISA Affiliate have timely satisfied their obligations under Sections 6055 and 6056 of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Asset and Equity Purchase and Contribution Agreement (Andover National Corp)
Employee Benefit Matters. (a) Section 3.20(a4.18(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock- based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax- qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by either Seller for the Company benefit of any current or former employee, officer, director, manager, retiree, independent contractor or consultant of the Business or any spouse or dependent of such individual, or under which either Seller or any of its ERISA Affiliates has or may have any material Liability, or with respect to which the Company has Buyer or may any of its Affiliates would reasonably be expected to have any Liability Liability, contingent or otherwise (as listed on Section 4.18(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has Sellers have made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwiseeffect; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; and (vvi) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit PlanPlan received by either Seller.
(c) Except as set forth in Section 4.18(c) of the Disclosure Schedules, each Benefit Plan and related trust (other than any multiemployer plan within the meaning of Section 3(37) of ERISA (each a “Multiemployer Plan”)) has been established, administered and maintained in all material respects in accordance with its terms and in material compliance with all applicable Laws (including ERISA and the Code). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a “Qualified Benefit Plan”) is so qualified and has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a),
(d) Neither of the Company Sellers nor any of their ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Guaranty Corporation; (iii) withdrawn from any Multiemployer Plan; or (iv) engaged in any transaction which would give rise to Liability under Section 4069 or Section 4212(c) of ERISA.
(e) With respect to each Benefit Plan (i) except as set forth in Section 4.18(e) of the Disclosure Schedules, no such plan is a Multiemployer Plan, and (A) all contributions required to be paid by either Seller or its ERISA Affiliates have been timely paid to the applicable Multiemployer Plan, (B) neither of the Sellers nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to withdrawal liability under Title IV of ERISA which remains, or which, as of the Closing will remain, unsatisfied, and (C) a complete withdrawal from all such Multiemployer Plans at or prior to the Closing would not have a Material Adverse Effect on either Seller or result in any Liability to Buyer; (ii) no such plan is a “multiple employer plan” within the meaning of Section 412 or Section 430 413(c) of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
; (diii) Each Benefit Plan no Action has been establishedinitiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including none of the Purchased Assets is, or may reasonably be expected to become, the subject of any lien arising under Section 302 of ERISA and or Section 412(a) of the Code).
; and (ev) Nothing no “reportable event,” as defined in Section 4043 of ERISA, has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Codesuch plan.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made Except as set forth in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books Section 4.18(f) of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, Disclosure Schedules and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan or other arrangement provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jg) There Except as set forth in Section 4.18(g) of the Disclosure Schedules there is no pending or, to the Company’s Sellers’ Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been within the three (3) years prior to the date hereof been, to the Sellers’ Knowledge, the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.an
(kh) There has been no amendment to, announcement by the Company either Seller or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or Collective Bargaining Agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, consultant or independent contractor or consultantof the Business, as applicable.
(l) . Neither of the Company Sellers nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit PlanPlan or any Collective Bargaining Agreement.
(mi) Neither Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including, notices, rulings and proposed and final regulations) thereunder. Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code. (j) Except as set forth in Section 4.18(j) of the Disclosure Schedules and with respect to the Union Contract, neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company Business to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (viv) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (viv) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
. Seller has made available to Buyer true and complete copies of any Section 280G calculations prepared (nwhether or not final) All Options have been duly authorized by the Company Board with respect to any disqualified individual in compliance connection with the terms of the Stock Option Plantransactions contemplated hereby. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.Section
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aSchedule 3.17(a) of the Disclosure Schedules contains sets forth a true and complete list of each Employee Benefit Plan and identifies which Employee Benefit Plans are sponsored and maintained at the Seller level (the “employee benefit Seller Plans”) and which Employee Benefit Plans are sponsored and maintained by the Acquired Companies at the level of the Company or one of its Subsidiaries (the “Company Plans”).
(b) With respect to each Company Plan, Seller has made available to Purchaser complete and correct copies of the following documents: (i) the most recent plan documents or written agreements thereof, and all amendments thereto, all related trust or other funding vehicles, investment management or advisory agreements and associated custodial, insurance policies or service agreements with respect to each such Company Plan and all prior Company Plan documents, if amended within the last two (2) years and, in the case of any Company Plan that is not in written form, a written description of all material terms of such plan” ; (ii) the most recent summary plan description, and all related summaries of material modifications thereto, if applicable; (iii) the three (3) most recent Forms 5500 (including schedules and attachments), financial statements and actuarial reports, if applicable; (iv) the most recent IRS determination letter and any pending application with respect to each such Company Plan which is intended to qualify under Section 401(a) of the Code or any Seller Plan from which a tax-qualified plan of Purchaser will accept an eligible rollover contribution (as that term is defined described in Section 3(3401(a)(31) of ERISA the Code); (whether v) any governmental advisory opinions, rulings, compliance statements, closing agreements, or similar materials specific to each Company Plan; (vi) correspondence with the IRS, the Department of Labor, the Securities and Exchange Commission (the “SEC”) or Pension Benefit Guaranty Corporation relating to any controversy, correction proceeding, assessment or audit concerning such Company Plan occurring within the last six (6) years; and (vii) all discrimination tests for each Company Plan for the three (3) most recent plan years (if any). With respect to each Seller Plan listed on Schedule 3.17(a), Seller has delivered to Purchaser complete and correct copies of the most recent plan documents or written agreements thereof, and all amendments thereto, the most recent IRS determination or opinion letter (if applicable) and, in the case of any Seller Plan that is not in written form, a written description of all material terms of such plan is subject plan.
(c) With respect to ERISAeach Company Plan: (i) each has been administered in all material respects in compliance with its terms and each other benefit agreement, program, plan or arrangementwith all applicable Laws, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed but not limited to, been ERISA and the Code; (ii) no actions, suits, claims or disputes are pending, or to Seller’s Knowledge threatened, by or on behalf of any such Company Plan, by any employee or beneficiary covered under any such Company Plan (other than routine claims for benefits), or otherwise involving any such Company Plan; (iii) all premiums, contributions, or other payments required to contribute tohave been made by Law or under the terms of any Company Plan or any contract or agreement relating thereto as of the Closing Date have been timely made, and all obligations accrued on or prior to the Closing Date which relate to directors, officers, employees or consultants of the Acquired Companies (or any other person who provides services to the Acquired Companies or the Business (including any MSI Employee)) and which are not yet due have either been timely paid or have been accrued on the Most Recent Balance Sheet in accordance with applicable Law and relevant accounting standards; (iv) all reports, returns and similar documents required to be filed with any Governmental Authority have been timely filed and all documents required to be distributed to any plan participant have been timely distributed; and (v) no “prohibited transaction” or “reportable event”, or had any Liability with respect toother breach of fiduciary responsibility, any “employee pension benefit plan” which is reasonably likely to result in material Liabilities to the Acquired Companies, has occurred within the meaning of Section 3(2the applicable provisions of ERISA or the Code. No examination, voluntary correction proceeding or audit of any Company Plan by any Governmental Authority is currently in progress or, to Seller’s Knowledge, threatened. No Acquired Company is a party to any agreement or understanding with the Pension Benefit Guaranty Corporation, the IRS or the Department of Labor.
(d) of ERISA, whether or not subject With respect to ERISA, or any plan each Employee Benefit Plan intended to qualify under Section 401(a) of the Code, the IRS has issued a favorable determination letter or opinion letter or advisory letter upon which an Acquired Company is entitled to rely under IRS pronouncements that such plan is qualified under Section 401(a) of the Code, and no such determination letter, opinion letter or advisory letter has been revoked nor has revocation been threatened. To Seller’s Knowledge, no circumstances exist (i) which could result in loss of such qualification under Section 401(a) of the Code or (ii) which could result in a penalty under the IRS Closing Agreement Program if discovered during an IRS audit or investigation.
(be) With respect to each Benefit PlanNo Company Plan is, the Company has made available to Parent accurateand neither Seller, current and complete copies of each MSI, any of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company Acquired Companies nor any ERISA Affiliate has ever maintained, contributed to, at any time participated in or made contributions to or has had an obligation to contribute to, any other Liabilities or incurred any Liability obligations or potential Liabilities or obligations (contingent or otherwise) with respect to, either to an “employee benefit plan” (as defined in Section 3(3) of ERISA) which is or was (i) a “multiemployer plan, ” (as such term is defined in Sections Section 3(37) or 4001(a)(3) of ERISA or ERISA), (ii) an employee pension benefit plan a “multiple employer plan” (as defined in within the meaning of Code Section 3(2413(c)), (iii) a “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA), (iv) that is or was subject to Section 302, 303 or Title IV of ERISA or Section 412 or 436 of the Code, or (v) a “voluntary employees’ beneficiary association” within the meaning of Section 430 509(c)(9) of the Code or Section 302 or Section 303 other funding arrangement for the provision of ERISA. The Company has not participated welfare benefits (such disclosure to include the amount of any such funding), in each case which could result in any union-sponsored multiemployer welfare benefit fund maintained pursuant material Liability to any of the Acquired Companies.
(f) No Company Plan is a “employee welfare benefit group health plan” as defined in Section 3(1733(a)(1) of ERISA.
(g) Neither Seller, MSI, any of the Acquired Companies nor any ERISA Affiliate has any obligation under any Company Plan or a otherwise (including through any other written or oral agreement) to provide post-employment or retiree welfare benefits (other than with respect to accrued vacation) to any former employee of any Acquired Company or to any MSI Employee, except as required by applicable Laws or for death benefits or retirement benefits under any “multiple employer welfare arrangementemployee pension benefit plan” (as such term is defined in Section 3(403(2) of ERISA). With respect to each group health plan benefiting any current or former employee of the Company or any ERISA Affiliate that is subject to Section 4980B of the Code, the Company and each ERISA Affiliate has complied with the continuation coverage requirements (including the notice provisions) of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA. There exists no basis upon which MSI (solely with respect to the MSI Employees) or any of the Acquired Companies would be expected to be subject to any penalties or assessable payments under Section 4980H of the Code, nor has MSI (solely with respect to the MSI Employees) or any of the Acquired Companies received any correspondence from the IRS or other agencies indicating that such penalties or assessable payments are or may be due.
(dh) Each Benefit Company Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A(d)(1) of the Code) has been established, administered and maintained materially operated in accordance with its terms and in material compliance with all applicable Laws (including ERISA and Section 409A of the Code).
, Treasury regulations issued under Section 409A of the Code, and any subsequent guidance relating thereto and no additional tax under Section 409A(a)(1)(B) of the Code has been incurred by a participant in any such Company Plan. None of MSI (esolely with respect to the MSI Employees) Nothing or the Acquired Companies has occurred any obligation to provide any gross-up payment to any individual with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates orincome tax, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to additional tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H interest charge imposed pursuant to Section 409A of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any the consummation of the transactions contemplated by this Agreement will Contemplated Transactions (either alone or upon the occurrence of any additional in combination with another event) will or subsequent events): can be reasonably expected to (i) entitle any current or former director, officer, employee or consultant of any Acquired Company or any MSI Employee to any payment (including severance pay, retention bonus, change in control payment or similar compensation), any cancellation of indebtedness, or any increase in compensation; (ii) result in the acceleration of payment, funding or vesting under any Employee Benefit Plan or otherwise; or (iii) result in any increase in benefits payable under any Employee Benefit Plan or otherwise. Neither Seller, MSI, any of the Acquired Companies nor any ERISA Affiliate has promised any type of plan or binding commitment to (1) create any additional Company Plan, or (2) amend or modify any existing Company Plan with any current or former employee, independent contractor or consultant director.
(j) None of Seller, MSI, any of the Company to severance pay Acquired Companies or any ERISA Affiliate has terminated an employee benefit plan for which an Acquired Company could have any existing or continuing material Liability or obligation.
(k) There currently is not and never has been any Company Plan that is or has been subject to the Laws of a jurisdiction other payment; than the United States.
(iil) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due No Acquired Company is a party to any such individual; (iii) limit arrangement, contract, agreement or restrict plan that has resulted or could result, separately or in the right aggregate, in the payment by any Acquired Company of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute paymentspayment” within the meaning of Section 280G(b) 280G of the Code; Code (or any corresponding provision of state, local or non-U.S. Law) (vion account of the transactions xxxxxxxxxxxx.xx this Agreement). The parties acknowledge that the this Section 3.17(l) require a “gross-up” or other payment shall not apply to any arrangements entered into at the direction of Purchaser or between Purchaser and its Affiliates, on the one hand, and any individual on the other hand (“disqualified individual” within Purchaser Arrangements”) so that, for the meaning avoidance of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in doubt, compliance with the terms of the Stock Option Plan. No Options have this Section 3.17(l) shall be determined as if such Purchaser Arrangements had not been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactivelyentered into.
Appears in 1 contract
Samples: Equity Purchase Agreement (Twin River Worldwide Holdings, Inc.)
Employee Benefit Matters. (a) Section 3.20(a3.18(a) of the Seller Disclosure Schedules contains a true Schedule sets forth an accurate and complete list of all Company Plans. With respect to each “employee benefit Company Plan, the Seller Representative has delivered to the Purchaser an accurate and complete copy of (i) all plan documents (including all amendments thereto) and summary plan descriptions, (ii) Forms 5500 in each of the most recent three plan year, including all schedules thereto, (iii) with respect to any Company Plan that is a pension plan” , as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such casea “Pension Plan”), that is sponsoredmeets or purports to meet the requirements of Section 401(a) of the Code (a “Qualified Plan”), maintained, administered or contributed to the most recent determination letter issued by the IRS, (iv) all notices that were given by any Acquired Company, any ERISA Affiliate or any Company Plan to the IRS, the United States Department of Labor (the “DOL”) or any participant or beneficiary, pursuant to statute, since October 1, 2021, (v) all notices that were given by the IRS or the DOL to any Acquired Company, any ERISA Affiliate or any Company Plan since October 1, 2021, (vi) any trust documents, funding vehicles and any material third-party Contracts with respect to which the such Company has or may have Plan, and (vi) copies of any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had written report of any Liability analysis performed with respect to, to any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify Company Plan under Section 401(a) 409A of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of Neither any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Acquired Company nor any ERISA Affiliate has ever maintainedestablished, maintained or contributed to, or had an obligation to maintain or contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(23(37)(A) of ERISAERISA (a “Multiemployer Plan”), (ii) that is or was Pension Plan subject to Title IV of ERISA or (a “Title IV Plan”), (iii) voluntary employees’ beneficiary association under Section 412 or Section 430 501(c)(9) of the Code Code, (iv) organization or trust described in Section 302 501(c)(17) or Section 303 501(c)(20) of ERISA. The Company has not participated in any union-sponsored multiemployer the Code, (v) welfare benefit fund maintained as defined in Section 419(e) of the Code, (vi) self-insured plan (including any plan pursuant to any “which a stop-loss policy or contract applies) or (vii) a Company Plan that is an employee welfare benefit plan” as defined plan described in Section 3(1) of ERISA that has two or a “multiple employer welfare arrangement” (as defined in more contributing sponsors at least two of which are not under common control within the meaning of Section 3(40) of ERISA. Except as required by the continuation coverage requirements of Sections 601 et seq. of ERISA and Section 4980B of the Code (“COBRA”), no Acquired Company provides health or welfare benefits for any retired or former employee, or their beneficiaries or dependents, nor is any Acquired Company obligated to provide health or welfare benefits to any active employee following such employee’s retirement or other termination of service.
(dc) Each Benefit Company Plan is and at all times has been establishedmaintained, administered funded, operated and maintained materially in accordance with its terms administered, and in compliance with each Acquired Company has performed all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty obligations under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Company Plan, in each case in all payments due from the Company have either been timely made material respects in accordance with the terms of such Benefit Company Plan and in material compliance with all applicable Law or are properly recorded as liabilities on Laws, including ERISA and the books Code. Each Acquired Company has complied in all material respects with the provisions of COBRA, the Health Insurance Portability and Accountability Act of 1996 and the Family Medical Leave Xxx 0000. Each Company Plan that provides deferred compensation subject to Section 409A of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements Code is in good faith compliance in all material respects with applicable guidance under Section 409A of the Company for such amountsCode in form and operation. All premiums contributions required to be paid for each insurance policy funding all or made to any portion Company Plan by applicable Law and the terms of the benefits under any Benefit such Company Plan have been timely made or paid in full. All benefits accrued under returns, reports and filings required by any unfunded Benefit Governmental Authority or which must be furnished to any Person with respect to each Company Plan have been paid, accrued filed or otherwise adequately reserved to the extent required by, and in accordance with, GAAPfurnished.
(gd) All reports No transaction prohibited by Section 406 of ERISA and disclosures relating no “prohibited transaction” under Section 4975 of the Code has occurred with respect to any Company Plan. Neither any Acquired Company nor any Seller has any Liability to the Benefit IRS with respect to any Company Plan. All contributions and payments made or accrued with respect to all Company Plans required to be filed with are deductible under Sections 162 or furnished to a Governmental Authority or plan 404 of the Code. There is no unfunded Liability under any Company Plan. Other than routine claims for benefits submitted by participants or beneficiaries have been prepared beneficiaries, no claim against, or Proceeding involving, any Company Plan or any fiduciary thereof is pending or, to the Sellers’ Knowledge, is threatened, which could reasonably be expected to result in accordance with applicable Law any material Liability, direct or indirect (by indemnification or otherwise) of any Acquired Company to the DOL, the IRS or any other Person, and filed no event has occurred or furnished in accordance with applicable Law in a timely mannercircumstance exists that could reasonably be expected to give rise to any such Liability.
(he) There exists no condition that would subject Each Company Plan sponsored by each Acquired Company permits assumption thereof by the Company to any Liability under Purchaser or its Subsidiaries upon the terms Closing without the consent of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company participants or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination eventPerson. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon in conjunction with any other event) will not result in the occurrence acceleration or creation of any additional or subsequent events): (i) entitle rights of any current or former director, officer, employee, independent contractor officer or consultant employee of the any Acquired Company to severance pay payments or any other payment; (ii) accelerate the time of payment, funding benefits or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result increases in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; payments or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Codebenefits.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aSchedule 4.17(a) of the Partnership Entities Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity or other equity, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by any of the Company Partnership Entities for the benefit of any current or former employee, officer, manager, retiree, independent contractor or consultant of any of the Partnership Entities or any spouse or dependent of such individual, or under which any of the Partnership Entities has or may have any Liability, or with respect to which the Company has Contributor or may any of its Affiliates would reasonably be expected to have any Liability Liability, contingent or otherwise (as listed on Schedule 4.17(a) of the Partnership Entities Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company Partnership has made available to Parent Contributor accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the current plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any current trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwiseeffect; (iv) copies of any current summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any current Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Forms 5500, with schedules and financial statements attached; (vii) actuarial valuations and reports, as applicable, related to any Benefit Plans with respect to the two most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit PlanPlan with respect to the two most recently completed plan years.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, Except as such term is defined in Sections 3(37) or 4001(a)(3set forth on Schedule 4.17(c) of ERISA or the Partnership Entities Disclosure Schedules, each Benefit Plan and related trust (ii) an employee pension benefit other than any multiemployer plan (as defined in within the meaning of Section 3(23(37) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or (each a “multiple employer welfare arrangement” (as defined in Section 3(40Multiemployer Plan”) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially substantially in accordance with its terms and in material compliance with all applicable Laws Law (including ERISA and the Code).
. Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (ea “Qualified Benefit Plan”) has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified, and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, party to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f. Except as set forth on Schedule 4.17(c) With respect of the Partnership Entities Disclosure Schedules, all benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and applicable all Law or are properly recorded as liabilities on the books of the Company andand accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(gd) All reports and disclosures None of the Partnership Entities or their ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code relating to the benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Plans required Guaranty Corporation; (iii) withdrawn from any Benefit Plan; or (iv) engaged in any transaction which would give rise to be filed with liability under Section 4069 or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerSection 4212(c) of ERISA.
(he) There exists With respect to each Benefit Plan, except as set forth on Schedule 4.17(e) of the Partnership Entities Disclosure Schedules, (i) no condition that would such plan is a Multiemployer Plan; (ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Proceeding has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan is subject to the Company minimum funding standards of Section 412 of the Code or Title IV of ERISA, and none of the assets of any of the Partnership Entities or any ERISA Affiliate is, or may reasonably be expected to become, the subject of any lien arising under Section 302 of ERISA or Section 412(a) of the Code; and (v) no “reportable event,” as defined in Section 4043 of ERISA, has occurred with respect to any Liability under the terms such plan.
(f) Except as set forth on Schedule 4.17(f) of the Benefit Plans or applicable Law relating thereto other than any payment Partnership Entities Disclosure Schedules, none of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in Partnership Entities has a termination event. The Company has no commitment or obligation and none has not made any representations to any employee, officer, directormanager, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan Plan, in connection with the consummation of the transactions contemplated by this Agreement or otherwiseAgreement.
(ig) Other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reason, and neither and, except as set forth on Schedule 4.17(g) of the Company Partnership Entities Disclosure Schedules, none of the Partnership Entities nor any of its their respective ERISA Affiliates has any Liability to provide post-termination or retiree health welfare benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health welfare benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jh) There is no pending or, to the Company’s KnowledgeKnowledge of the Partnership, threatened Action Proceeding relating to a Benefit Plan (other than routine claims for benefits), and and, except as set forth on Schedule 4.17(h) of the Partnership Entities Disclosure Schedules, no Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(ki) There Except as set forth on Schedule 4.17(i) of the Partnership Entities Disclosure Schedules, there has been no amendment to, announcement by any of the Company Partnership Entities or any of its their respective Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any directormanager, officer, employee, independent contractor or consultant, as applicable.
(l) Neither . None of the Company Partnership Entities nor any of its their respective Affiliates has any commitment or obligation or has made any representations to any directormanager, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(mj) Neither Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices and proposed and final regulations) thereunder. No Partnership Entity has any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code. None of the Partnership Entities has any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(k) Each individual who is classified by any of the Partnership Entities as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.
(l) Except as set forth on Schedule 4.17(l) of the Partnership Entities Disclosure Schedules, neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former directormanager, officer, employee, independent contractor or consultant of the Company any Partnership Entity to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount amount, of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company any Partnership Entity to merge, amend or terminate any Benefit Plan; or (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a3.16(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974 (as amended, and including the regulations thereunder, “ERISA”), whether or not such plan is written and whether or not subject to ERISA) , and each supplemental retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, equity, change in control, retention, severance, salary continuation, and other benefit similar agreement, plan, policy, program, plan or arrangementpractice, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements which is or understandings, in each such case, that is sponsoredhas been established, maintained, administered sponsored, or contributed to by the Company or with respect to under which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to For each Benefit Plan, the Company Seller has made available to Parent Buyer accurate, current current, and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has , or if not been reduced to writing, a written summary of all material plan terms; (ii) any written contracts and arrangements related to such Benefit Plan, including trust agreements or other funding arrangements, and insurance policies, certificates, and contracts; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as case of a result Benefit Plan intended to be qualified under Section 401(a) of the transactions contemplated Code, the most recent favorable determination or national office approval letter issued by this Agreement or otherwisethe Internal Revenue Service and any legal opinions issued thereafter with respect to the Benefit Plan’s continued qualification; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating the most recent Form 5500 filed with respect to any such Benefit Plan; and (v) copies of any material notices, letters audits, inquiries, or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Servicesfrom, or other filings with, any Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan and related trust has been established, administered administered, and maintained materially in accordance with its terms and in substantial compliance with all applicable Laws (including ERISA and the Code).
(e) . Nothing has occurred with respect to any Benefit Plan that has subjected or could [reasonably be expected to to] subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISAcivil action, to any liability for a breach of fiduciary duty under Section 409 of ERISApenalty, surcharge, or to tax Tax under applicable Law or penalty under Chapter 43 which would jeopardize the previously-determined qualified status of Subtitle D of the Code or Sections 6652any Benefit Plan. All benefits, 4975 or 4980H of the Code.
(f) With respect contributions, and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amountsLaws and accounting principles. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits Benefits accrued under any unfunded Benefit Plan have been paid, accrued accrued, or otherwise adequately reserved for to the extent required by, and in accordance with, by GAAP.
(gd) All reports The Company has not incurred and disclosures relating does not reasonably expect to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
incur: (hi) There exists no condition that would subject the Company to any Liability under the terms Title I or Title IV of ERISA, any related provisions of the Benefit Plans Code, or applicable Law relating thereto other than to any payment Benefit Plan; or (ii) any Liability to the Pension Benefit Guaranty Corporation. No complete or partial termination of benefits in the normal course of plan operation. Each any Benefit Plan can be amended, terminated has occurred or otherwise discontinued after the Closing in accordance with its terms, without material liabilities is expected to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. occur.
(e) The Company has no commitment not now or obligation and has not made at any representations to time within the previous six years contributed to, sponsored, or maintained: (i) any employee, officer, director, independent contractor “multiemployer plan” as defined in Section 3(37) of ERISA; (ii) any “single-employer plan” as defined in Section 4001(a)(15) of ERISA; (iii) any “multiple employer plan” as defined in Section 413(c) of the Code; (iv) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA; (v) a leveraged employee stock ownership plan described in Section 4975(e)(7) of the Code; or consultant, whether or not legally binding, to adopt, amend, modify or terminate (vi) any other Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwisesubject to required minimum funding requirements.
(if) Other than as required by Section under Sections 601 et. seq. to 608 of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(mg) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (will, either alone or upon the occurrence of in combination with any additional or subsequent events): other event: (i) entitle any current or former director, officer, employee, independent contractor contractor, or consultant of the Company to any severance pay pay, increase in severance pay, or any other payment; (ii) accelerate the time of payment, funding funding, or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nature's Miracle Holding Inc.)
Employee Benefit Matters. (a) Schedule 4.12 identifies each Employee Plan and Benefit Arrangement. The Sellers have furnished or made available to Purchaser (i) copies of such Employee Plans and Benefit Arrangements (and, if applicable, related trust agreements) and all amendments thereto, (ii) the currently- effective summary plan description pertaining to each Employee Plan, (iii) the most recent annual report for each Employee Plan (including all related schedules), (iv) the most recent IRS determination letter for each Employee Plan which is intended to constitute a qualified plan under Section 3.20(a) 401 of the Disclosure Schedules contains a true Code, and complete list (v) for each unfunded Employee Plan or Benefit Arrangement, financial statements which fairly present the financial condition and results of each “employee benefit plan” as that term operations of such Plan. No Employee Plan or Benefit Arrangement is, and neither of the Avalon Companies nor any Avalon Subsidiary maintains or is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required obligated to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(23(3) of ERISA) that is (i) a Multiemployer Plan, (ii) a Title IV Plan, (iii) maintained in connection with any trust described in Section 501(c)(9) of the Code, or was (iv) subject to the minimum funding requirements of Part 3 of Title IV I of ERISA. None of the Avalon Companies nor any Avalon Subsidiary has any liabilities with respect to an employee benefit plan described in (i) or (ii) above with respect to any ERISA Affiliate.
(b) No "prohibited transaction" (within the meaning of Section 4975(c) of the Code) has occurred with respect to any employee benefit plan or arrangement which is covered by Title I of ERISA, which transaction has caused or will cause the Avalon Companies or Avalon Subsidiaries to incur any material liability under ERISA, the Code or otherwise, excluding transactions effected pursuant to and in compliance with a statutory or administrative exemption.
(c) Each Employee Plan identified on the Schedule 4.12 that is intended to be qualified under Section 412 401(a) of the Code has received a favorable determination letter from the IRS that it is so qualified and that its trust is exempt from Tax under Section 501(a) of the Code, (ii) each Employee Plan has been maintained and operated in substantial compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations including ERISA and the Code, and (iii) no Employee Plan or Benefit Arrangement provides for post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Avalon Companies and Avalon Subsidiaries, except as required to avoid excise tax under Section 430 4980B of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA)required by state law.
(d) Each Benefit Plan Arrangement has been established, administered maintained and maintained materially operated in accordance substantial compliance with its terms and in compliance with the requirements prescribed by any and all applicable Laws (including ERISA statutes, orders, rules and the Code)regulations and has been maintained in good standing with applicable regulatory authorities.
(e) Nothing There is not and there has occurred not been at any time since November 6, 1998 any pending or, to the Knowledge of the Avalon Companies, threatened investigations, audits, or material litigation or arbitration concerning or involving any Employee Plan or Benefit Arrangement and (ii) no material claims are pending or threatened with respect to any Benefit Plan that has subjected bond or could reasonably be any fiduciary liability or other similar insurance with regard to the actions of any Person in connection with any Employee Plan, nor is there expected to subject the Company or be any of its ERISA Affiliates or, with respect notice to any period on insurer under any such bond or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, policy with regard to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the CodeEmployee Plan.
(f) With respect to each Benefit Plan, all payments due from the Company The Avalon Companies and Avalon Subsidiaries have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance complied in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning all requirements of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) 4980B of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Securities Purchase Agreement (Avalon Cable Finance Inc)
Employee Benefit Matters. (a) Section 3.20(a4.18(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit, retirement, employment, compensation, incentive, stock option, restricted stock, stock appreciation right, phantom equity, change in control, severance, vacation, paid time off, fringe-benefit and other similar agreement, plan” as that term is defined in Section 3(3) of ERISA , policy, program and other arrangement (and any amendments thereto), whether or not such plan is subject reduced to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandingswriting, in each effect and covering one or more Employees, former employees and the beneficiaries and dependents of any such caseEmployee or former employee of the Business, that and is maintained, sponsored, maintainedcontributed to, administered or required to be contributed to by the Company Seller, or with respect to under which the Company Seller has or may could reasonably be expected to have any Liability liability for premiums or benefits (as listed on Section 4.18(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company Seller has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements, custodial agreements, insurance policies and contractspolicies, administration agreements and similar agreements, now in effect and investment management or required in the future as a result of the transactions contemplated by this Agreement or otherwiseinvestment advisory agreements; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other or similar written employee communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination letter (if any) from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which Forms 5500 are required to be filed, a copy of the most recently filed Forms 5500, with schedules attached; (vii) copies of any financial statements in respect of the last three years; and (vviii) copies of material notices, letters or other correspondence from the Internal Revenue Service, Service or Department of Labor, Department of Health and Human Services, or other Governmental Authority Labor relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate No Benefit Plan is or has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either been (i) a multiemployer plancovered by Title IV of ERISA, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV the minimum funding requirements of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored Code, (iii) a “multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(13(37) of ERISA ERISA, or (iv) a “multiple employer welfare arrangementplan” (as defined in Section 3(40413(c) of ERISAthe Code. No Benefit Plan provides for any retiree health benefits for any employees or dependents of Seller other than as required by Part 6 of Subtitle B of Title I of ERISA and Code Section 4980B, as amended (“COBRA”).
(d) Each Benefit Plan has been established, maintained and administered and maintained materially in accordance material compliance with its terms and in compliance with all applicable Laws (including ERISA and the Code)Law.
(e) Nothing has occurred Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby will (i) result in any payment to be made by Seller, including without limitation, severance, golden parachute (defined in Section 280G, of the Code) or otherwise, becoming due to any employee, director or consultant of Seller, or (ii) increase any benefits otherwise payable under any Benefit Plan.
(f) Seller and its Affiliates have complied in all material respects with Section 409A of the Code with respect to any interest granted or awarded pursuant to a Benefit Plan that has subjected or could reasonably be expected is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code), and no Person had a legally binding right to an amount under such a nonqualified deferred compensation plan, which to the Knowledge of Seller would subject such Person to the Company or taxes imposed by Section 409A of the Code, and neither Seller nor any of its ERISA Affiliates or, with respect to has any period on or after the Closing Date, Parent or indemnity obligations for any of its Affiliates, to a penalty Taxes imposed under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H 409A of the Code.
(fg) With No Actions (to the Knowledge of Seller with respect to each Benefit Planinquiries, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan audits and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan investigations) have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued asserted or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to instituted against the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits)) and, and to the Knowledge of Seller, no Benefit Plan has Actions have been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authoritythreatened.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(nh) All Options premiums required to be paid, all benefits, expenses and other amounts due and payable, and all contributions, transfers or payments required to be made to or under the Benefit Plans will have been duly authorized by paid, made or accrued for all services on or prior to the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactivelyClosing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Information Services Group Inc.)
Employee Benefit Matters. (a) Section 3.20(a4.19(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off (PTO), medical, vision, dental, disability, welfare, Code Section 125 cafeteria, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by Seller or its ERISA Affiliates for the Company benefit of any Transaction Employees or any spouse or dependent of such individual, or under which Seller or any of its ERISA Affiliates has or may have any Liability, or with respect to which the Company has Buyer or may any of its Affiliates would reasonably be expected to have any Liability Liability, contingent or otherwise (as listed on Section 4.19(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company Seller has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, COBRA communications, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (iv) in the case of any Benefit Plan for which a Form 5500 must be filed, a copy of the two most recently filed Forms 5500, with all corresponding schedules and financial statements attached; (v) the most recent nondiscrimination tests performed under the Code; and (vvi) copies of material notices, letters or other correspondence from the Internal Revenue Service, U.S. Department of Labor, U.S. Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Neither Except as set forth on Section 4.19(c) of the Company nor Disclosure Schedules, each Benefit Plan and any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred related trust (other than any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or each a “multiple employer welfare arrangement” (as defined in Section 3(40Multiemployer Plan”)) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA ERISA, the Code and any applicable local Laws). Each Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code (a “Qualified Benefit Plan”) is so qualified and received a favorable and current determination letter from the Internal Revenue Service with respect to the most recent five (5)-year filing cycle, or with respect to a prototype or volume submitter plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan or volume submitter plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) , and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company Seller or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
. No pension plan (fother than a Multiemployer Plan) With respect which is subject to minimum funding requirements, including any multiple employer plan, (each a “Single Employer Plan”) in which employees of the Business or any ERISA Affiliate participate or have participated has an “accumulated funding deficiency,” whether or not waived, or is subject to a lien for unpaid contributions under Section 303(k) of ERISA or Section 430(k) of the Code. No Single Employer Plan covering employees of the Business which is a defined benefit plan has an “adjusted funding target attainment percentage,” as defined in Section 436 of the Code, less than 80%. All benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, with GAAP.
(gd) All reports and disclosures Neither Seller nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Plans Guaranty Corporation; (iii) withdrawn from any Benefit Plan; (iv) engaged in any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA; (v) incurred taxes under Section 4971 of the Code with respect to any Single Employer Plan; or (vi) participated in a multiple employer welfare arrangement (MEWA).
(e) With respect to each Benefit Plan (i) in the case of any Multiemployer Plan (A) all contributions required to be filed with paid by Seller or furnished to a Governmental Authority or plan participants or beneficiaries its ERISA Affiliates have been prepared timely paid to the applicable Multiemployer Plan, (B) neither Seller nor any ERISA Affiliate has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied, and (C) a complete withdrawal from such Multiemployer Plan on the Closing Date would not result in accordance any material liability to Seller and no Multiemployer Plan is in critical, endangered or seriously endangered status or has suffered a mass withdrawal; (ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan or the plan of any ERISA Affiliate maintained or contributed to within the last six (6) years is a Single Employer Plan subject to Title IV of ERISA; and (v) no “reportable event,” as defined in Section 4043 of ERISA, with applicable Law and filed or furnished in accordance respect to which the reporting requirement has not been waived, has occurred with applicable Law in a timely mannerrespect to any such plan.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(if) Other than as required by Section under Sections 601 et. seq. to 608 of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan or other arrangement provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jg) There is no pending or, to the CompanySeller’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three (3) years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kh) There has been no amendment to, announcement by the Company Seller or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year (other than on a de minimis basis) with respect to any director, officer, employee, consultant or independent contractor or consultantof the Business, as applicable.
(l) . Neither the Company Seller nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, consultant or independent contractor or consultantof the Business, whether or not legally binding, to adopt, amend, modify or terminate any Benefit PlanPlan or any collective bargaining agreement.
(mi) Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including, notices, rulings and proposed and final regulations) thereunder. Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(j) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company Business to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (viv) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (viv) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
. Seller has made available to Buyer true and complete copies of any Section 280G calculations prepared (nwhether or not final) All Options have been duly authorized by the Company Board with respect to any disqualified individual in compliance connection with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactivelytransactions.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a3.16(a) of the Qumu Disclosure Schedules contains Letter sets forth a true complete and complete accurate list of all material Qumu Employee Plans. With respect to each Qumu Employee Plan maintained or sponsored by a professional employer organization (“employee benefit plan” as that term is defined PEO Plans”), the representations and warranties in this Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or 3.16 are made with respect to which the Company has or may have Qumu’s participation in any Liability (each, PEO Plan as a “Benefit Plan”)participating employer. The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Each PEO Plan is identified as such on Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a3.16(a) of the CodeQumu Disclosure Letter and no representation or warranty is made with respect to any other participating employer in a PEO Plan or as to the PEO Plan as a whole. Other than as required by applicable Legal Requirements or as otherwise required by this Agreement or in the ordinary course of business, neither Qumu nor any ERISA Affiliate of Qumu has committed to any officer, or publicly communicated to any other employees to establish any new Qumu Employee Plan, to modify or amend (except as required by applicable law) any Qumu Employee Plan or to adopt or enter into any Qumu Employee Plan.
(b) With respect to each Benefit Qumu Employee Plan, the Company Qumu has made available to Parent accurate, current Synacor complete and complete accurate copies of each of the following: (i) where the Benefit such Qumu Employee Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, or a written summary of any unwritten plan) together with all material plan terms; amendments thereto and all related trust documents, (iiiii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any most recent summary plan descriptions, summaries including any summary of material modifications, summaries of benefits and coverage, employee handbooks modifications thereto and any other similar written communications material description made available to participants therein, (or a description iii) in the case of any oral communicationsplan that is intended to be qualified under Section 401(a) of the Code, the most recent determination, opinion, notification or advisory letter from the IRS, and correspondence between the IRS or the DOL on the one hand and Qumu on the other hand with respect to such letter, (iv) group annuity contracts, insurance contracts or other funding vehicles, administration and similar material agreements, investment management or investment advisory agreements, (v) in the case of any plan for which Forms 5500 are required to be filed, the most recent annual report (Form 5500) with schedules attached, (vi) the most recent financial statements for such Qumu Employee Plan, and (vii) all material correspondence to or from any governmental agency relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from Qumu Employee Plan within the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Planpast year.
(c) Except as would not reasonably be expected to result in a Qumu Material Adverse Effect, (i) each Qumu Employee Plan has been established, maintained and administered in accordance with all applicable Legal Requirements, including if applicable, ERISA and the Code, and in accordance with its terms, and (ii) each of Qumu, Qumu’s Subsidiaries and their respective ERISA Affiliates have (A) met their obligations with respect to each Qumu Employee Plan and (B) have timely made or properly accrued on the financial statements in accordance with GAAP all required contributions or other amounts payable with respect thereto.
(d) All Qumu Employee Plans that are intended to be qualified under Section 401(a) of the Code, and all trusts that are intended to be qualified under Section 501(a) of the Code (each, a “Qumu Qualified Plan”), have (i) received determination, opinion or advisory letters from the IRS to the effect that such Qumu Employee Plans are qualified and the plans and trusts related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or Qumu has remaining a period of time under applicable U.S. Department of the Treasury regulations or IRS pronouncements in which to apply for such a letter and to make any amendments necessary to obtain a favorable determination as to the qualified status of each such Qumu Qualified Plan and (ii) no such determination, opinion or advisory letter has been revoked and no event or circumstance exists that has materially and adversely affected or would reasonably be expected to materially and adversely affect such qualification or exemption. Except as would not reasonably be expected to result in Qumu Material Adverse Effect, no “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Qumu Employee Plan.
(e) Neither the Company Qumu, any of Qumu’s Subsidiaries nor any of their respective ERISA Affiliate Affiliates has ever in the preceding six (6) years maintained, participated in or contributed to, had an obligation to (or been obligated to contribute to), or incurred any Liability can reasonably expect to have future liability with respect to, either to (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was Pension Plan subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1Code; (ii) of ERISA or a “multiple employer welfare arrangementmultiemployer plan” (as defined in Section 4001(a)(3) of ERISA), (iii) a “multiple employer plan” as defined in ERISA or the Code, or (iv) multiple employer welfare arrangement (within the meaning of Section 3(40) of ERISA).
(d) Each Benefit . No Qumu Employee Plan has been establishedis funded by, administered and maintained materially in accordance associated with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, related to a penalty under “voluntary employees’ beneficiary association” within the meaning of Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H 501(c)(9) of the Code. No Qumu Employee Plan provides health benefits that are not fully insured through an insurance contract.
(f) With respect Each Qumu Employee Plan (other than the Qumu Stock Plan or an employment, severance, change in control or similar agreement with an individual) is amendable and terminable unilaterally by Qumu and any of Qumu’s Subsidiaries party thereto or covered thereby at any time without material liability to each Benefit PlanQumu or any of its Subsidiaries as a result thereof, all payments due from other than for benefits accrued as of the Company have either been timely made in accordance with the terms date of such Benefit Plan amendment or termination and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAProutine administrative costs.
(g) All reports Other than as required under Section 601 et seq. of ERISA or equivalent state or local law, Qumu does not have any material liability in respect of, or material obligation to provide, health or other welfare benefits (excluding normal claims for benefits under Qumu’s group life insurance, accidental death and disclosures relating dismemberment insurance and disability plans and policies) or coverage to any person following retirement or other termination of employment (other than continuation coverage through the Benefit Plans required to be filed with end of the month in which such termination or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerretirement occurs).
(h) There exists is no condition that would subject action, suit, proceeding, claim, arbitration, audit or investigation pending or, to the Company Knowledge of Qumu, threatened or reasonably anticipated, with respect to any Liability under Qumu Employee Plan or the terms assets of any Qumu Employee Plan or Qumu Non- U.S. Employee Plan or the Benefit Plans or applicable Law relating thereto assets of any Qumu Non-U.S. Employee Plan, other than any payment of claims for benefits in the normal course ordinary course.
(i) Except as would not reasonably be expected to result in a Qumu Material Adverse Effect, each Qumu Non-U.S. Employee Plan is in material compliance with all applicable Legal Requirements of plan operationeach applicable jurisdiction. Each Benefit such Qumu Non-U.S. Employee Plan can be amended, terminated is funded to the extent required by applicable Legal Requirements or otherwise discontinued after the Closing applicable terms of such plan or has been accrued for to the extent required by GAAP or other applicable accounting rules. Section 3.16(i) of the Qumu Disclosure Letter contains a complete and accurate list of each country in accordance with its terms, without material liabilities to Parent, the Company which Qumu or any of their its Subsidiaries or Affiliates has employees or independent contractors as of the date of the Qumu Balance Sheet.
(j) Section 3.16(j) of the Qumu Disclosure Letter sets forth a complete and accurate list of (i) all employment agreements with employees of Qumu or any of its Subsidiaries, other than (A) standard form offer letters, (B) other similar employment agreements entered into in the ordinary administrative expenses typically incurred course of business and (C) agreements materially consistent with such standard forms, in a termination event. The Company has no commitment the case of (A), (B) and (C) that can be terminated by Qumu without notice, liability or obligation obligation; and has not made (ii) all severance agreements, programs and policies of Qumu or any representations of its Subsidiaries with or relating to any employeeits Section 16 officers, officerexcluding programs and policies required to be maintained by Legal Requirement.
(k) Other than as set forth on Section 3.16(k) of the Qumu Disclosure Letter and Sections 1.4(c) and 7.7(c) of this Agreement, director, independent contractor the negotiation or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISAwill not, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): in combination with another event, (i) entitle any current or former employee, director, officerconsultant or officer of Qumu or any Subsidiary of Qumu to any acceleration, employeeincrease in acceleration rights, independent contractor severance, or consultant of the Company to increase in severance pay pay, or any other payment; material compensation or benefit, (ii) accelerate the time of paymentdistribution, funding payment or vestingvesting (whether or not in connection with a non-competition provision), a lapse of repurchase rights or increase the amount of any material compensation (including stock-based compensation) or benefits due to any such individual; employee, director or officer, (iii) limit result in the forgiveness of indebtedness, or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under trigger an obligation to fund benefits. No payment or result in benefit which will or may be made by Qumu or its ERISA Affiliates will, either alone or together with any other material obligation event or events, give rise to the payment of any amount that would not be deductible pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) 280G of the Code; . There is no contract, agreement, plan or (vi) require arrangement to which Qumu or any Subsidiary of Qumu is a “party or by which it is bound that provides any individual with the right to a gross-up” , indemnification, reimbursement or other payment for any excise or additional taxes, interest or penalties incurred pursuant to any “disqualified individual” within the meaning of Section 280G(c) 409A or Section 4999 of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Merger Agreement
Employee Benefit Matters. (a) Section 3.20(a3.15(a) of the Disclosure Schedules contains Schedule includes a true complete and complete accurate list of each compensation or benefit plan, agreement, policy, practice, program, or arrangement (whether or not subject to ERISA) maintained by Concrete or any of its Subsidiaries for the benefit of any employee, former employee, independent contractor or director of Concrete or any of its Subsidiaries (including, without limitation, each “employee benefit plan” as that such term is defined in Section 3(3) of ERISA (whether ERISA, any employment agreements or not such plan is subject to ERISA) and each other benefit agreementany pension, programsavings, plan profit-sharing, bonus, medical, insurance, disability, severance, executive compensation, fringe benefit, incentive, stock option, performance pay, loan or arrangementloan guarantee, includingplant closing, without limitationchange of control, each bonus plan, equity-based or deferred compensation planplans) (collectively, supplemental retirementthe “Concrete Plans”). Except as specifically provided in the foregoing documents made available to the Purchaser and except as specifically provided for in this Agreement, incentive compensation there are no amendments to any Concrete Plans that have been adopted or retention planapproved, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy nor has Concrete or plan, severance pay plan, disability plan, death any member of its Aggregate Group undertaken to make or adopt any such amendments or to adopt or approve any new employee benefit plan.
(b) Concrete has made available to the Purchaser, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which each Concrete Plan, copies of, where applicable: (i) the Company has documents embodying and relating to each such Concrete Plan, including the Concrete Plan document and the summary plan description, (ii) annual reports for the last two years for each such Concrete Plan and any related trust, (iii) the most recent determination or may have opinion letter received from the IRS pertaining to any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan such Concrete Plan intended to qualify under Section 401(a) of the Code and (iv) actuarial reports or valuations for the last two years.
(c) Each Concrete Plan has been administered in all Material respects in accordance with its terms and all applicable Legal Requirements, including, without limitation, ERISA and the Code, and contributions required to be made under the terms of any of the Concrete Plans or by any applicable Legal Requirement as of the date of this Agreement have been timely made and all premiums due or payable with respect to insurance policies funding any Concrete Plans for any period through the date of this Agreement have been timely made or paid in full, or, if not yet due, have been properly reflected on the Business Interim Financial Statements. No event has occurred or circumstances exist relating to Concrete and its operations that would result in a Material increase in premium cost of any Concrete Plan that is insured, or any material increase in benefit costs of any Concrete Plan that is self-funded, other than those increases that may be imposed by insurance companies upon the renewal of any insured plan or normal cost increases for self-insured plans.
(d) Each Concrete Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to its qualified status, and to the knowledge of Concrete, no fact or event has occurred that would adversely affect the qualified status of any such Concrete Plan.
(e) Neither Concrete nor any of its Subsidiaries has since January 1, 1999 maintained, adopted or established, contributed or been required to contribute to, or otherwise participated in or been required to participate in, any employee benefit plan or other program or arrangement subject to Title IV of ERISA (including, without limitation, a Multi-Employer Plan) or any plan otherwise subject to the minimum funding standards of Section 302 of ERISA or Section 412 of the Code.
(bf) With Neither Concrete nor any of its Subsidiaries has incurred any withdrawal liability with respect to any Concrete Plan that is a Multi-Employer Plan that has not been satisfied in full.
(g) No audit or investigation by any Governmental Entity is pending or, to the knowledge of Concrete, threatened, nor has any reportable event (within the meaning of Section 4043 of ERISA) (other than an event for which the 30-day notice period is waived) or breach of fiduciary duty occurred with respect to any Concrete Plan that has had or would be reasonably expected to be Material.
(h) All benefits due under each Benefit Concrete Plan have been timely paid and there is no lawsuit or claim, other than routine uncontested claims for benefits, pending or, to the knowledge of Concrete, threatened against any Concrete Plan or the fiduciaries of any such plan or otherwise involving or pertaining to any such Concrete Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: .
(i) where To the Benefit Plan knowledge of Concrete, none of the Concrete Plans nor any fiduciary thereof has been reduced the direct or indirect subject of an audit investigation or examination by any Governmental Entity or quasi-governmental agency that has had or would be reasonably expected to writingbe Material.
(j) Except as set forth in Section 3.15(j) of the Disclosure Schedule, (y) no Concrete Plan nor any other agreement, Contract or arrangement includes any provision that could result, separately or in combination with any other event, in the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writingpayment, a written summary of all material plan terms; (iii) where applicable, copies acceleration or enhancement of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future benefit as a result of the transactions contemplated by this Agreement Agreement, and (z) no amount paid or otherwise; (iv) copies payable by Concrete or any of its Subsidiaries and no benefit received by any summary plan descriptionsemployee or former employee of Concrete or any of its Subsidiaries or any officer, summaries director or consultant in connection with the transactions contemplated by this Agreement, either solely as a result thereof or as a result of material modificationsthe transactions contemplated by this Agreement, summaries of benefits and coverage, employee handbooks and in conjunction with any other similar written communications events, will be a “parachute payment” (or a description within the meaning of any oral communications) relating to any Benefit Plan; and (v) copies Section 280G of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit PlanCode).
(ck) Neither Except as set forth in Section 3.15(k) of the Company nor any ERISA Affiliate has ever maintainedDisclosure Schedule, contributed tono Concrete Plan provides life, had an obligation to contribute to, health or incurred any Liability other welfare benefits with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) to any Person beyond his or 4001(a)(3) her retirement or other termination of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) employment except coverage required by Part 6 of ERISA) that is or was subject to Title IV I of ERISA or Section 412 or Section 430 4980B of the Code or applicable state medical benefits continuation Legal Requirements, and neither Concrete nor any of its Subsidiaries has made a promise or commitment to any employees or former employees of Concrete or any of its Subsidiaries for retiree health or life insurance benefits or other retiree death benefits.
(l) Except as set forth in this Agreement or in Section 302 3.15(l) of the Disclosure Schedule, all Concrete Plans may be terminated or Section 303 amended after the Closing Date by Concrete without the approval of ERISA. The Company any Person.
(m) Neither Concrete and any member of its Aggregate Group nor any other Person, including any fiduciary, has not participated engaged in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangementprohibited transaction” (as defined in Section 3(40) 4975 of the Code or Section 406 of ERISA).
(d) Each Benefit which would subject any Concrete Plan or its related trust, Concrete, any member of its Aggregate Group or any Person that Concrete or any member of its Aggregate Group has been establishedan obligation to indemnify, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected Taxes or could reasonably be expected to subject penalty imposed under Section 4975 of the Company Code or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(fn) With respect Neither Concrete nor any of its Subsidiaries directly or indirectly maintains any loan (or equivalent thereof) to each Benefit Planor for any employees, all payments due from officers, directors or consultants of Concrete or its Subsidiaries, other than employee expense advances in the Company have either been timely made in accordance with the terms ordinary course of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAPbusiness.
(go) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement will not result in liability to Purchaser, any of its Affiliates, Concrete or otherwiseany of its Subsidiaries for any Taxes or other liabilities that would be Material relating to any Benefit Plan which is not a Concrete Plan.
(p) Section 3.15(p) of the Disclosure Schedule lists each Concrete Plan that constitutes a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code). Each Concrete Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof and has not been materially modified since October 2, 2004. All nonqualified bonus, incentive, profit sharing or other payments paid by Concrete or any of its Subsidiaries are paid within 2 1/2 months after the end of the taxable year in which the service provider is no longer subject to a substantial risk of forfeiture (within the meaning of IRS Notice 2005-1 and any other formal guidance provided by the IRS) and will not be considered a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code).
(q) All Concrete Employee Benefit Arrangements are listed in Section 3.15(q) of the Disclosure Schedule. With respect to such arrangements:
(i) Other than as required by Section 601 et. seq. of ERISAstate or mandatory social security arrangements, Section 4980B of the Code and Concrete Employee Benefit Arrangements are the Consolidated Omnibus Budget Reconciliation Act of 1985only schemes which provide retirement, as amendeddeath, disability or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health life insurance benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jii) Except as set forth in Section 3.15(q) of the Disclosure Schedule, the Concrete Employee Benefit Arrangements comply, and have been managed in all Material respects in accordance with, all applicable Legal Requirements.
(iii) All documents currently governing the Concrete Employee Benefit Arrangements or a summary (written in English) of the terms of the Concrete Employee Benefit Arrangements (including any proposed amendments announced prior to the date hereof) have been delivered to Purchaser and such documents or summaries are listed in Section 3.15(q) of the Disclosure Schedule.
(iv) Where a Concrete Employee Benefit Arrangement is funded, contributions have been paid in accordance with the governing documentation of the Concrete Employee Benefit Arrangement.
(v) There is no pending dispute about the benefits payable under the Concrete Employee Benefit Arrangements, and no claim by or against the trustees or managers of the Concrete Employee Benefit Arrangements or any of the participating employers has been made or, to the Company’s Knowledgeknowledge of Concrete, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or that is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authoritystill outstanding.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a) of the Disclosure Schedules contains a true and complete list of With respect to each employee benefit plan, program, arrangement, agreement or contract (including any “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 such plan is subject to “ERISA”)) and each other benefit agreementincentive, programchange of control, plan or arrangementbonus, includingmedical, without limitation, each bonus planoption, deferred compensation plancompensation, supplemental retirementvacation, incentive compensation or retention plancafeteria, equity purchase planseverance, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plantermination, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement policy or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered maintained or contributed to by any of the Company OGP Subsidiaries for the benefit of any current employees of the OGP Subsidiaries (collectively, the “OGP Employees”) or former employees of the OGP Subsidiaries (collectively, the “OGP Former Employees”) or for the benefit of the Transferred Employees or with respect to which the Company OGP Subsidiaries could reasonably be expected to incur any material liability under Title IV of ERISA or Section 412 of the Code or the OGP Assets could be subject to a material lien or other material impairment, and which is subject to or governed by the Law of the United States or any state or commonwealth of the United States (collectively, the “U.S. Employee Plans”), ABB has or may have any Liability (eachmade available to Purchaser, where applicable, a “Benefit true and correct copy of (i) the most recent annual report (Form 5500) filed with the IRS, (ii) each such U.S. Employee Plan”). The Company has never adopted, entered into(iii) each trust agreement relating to such U.S. Employee Plan, maintained(iv) the most recent summary plan description for each U.S. Employee Plan for which a summary plan description is required, sponsoredand (v) the most recent determination letter, contributed toif any, been required to contribute to, or had any Liability issued by the IRS with respect to, to any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan U.S. Employee Plan intended to qualify be qualified under Section 401(a) of the Code. Section 3.13(a) of the Disclosure Schedule sets forth each material U.S. Employee Plan.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each Except as otherwise set forth in Section 3.13(b) of the following: Disclosure Schedule, none of the U.S. Employee Plans (i) where is a “multiemployer plan”, within the Benefit Plan has been reduced to writingmeaning of Section 3(37) of ERISA, or a “single-employer plan”, within the plan document together with all amendments; (iimeaning of Section 4001(a)(15) where the Benefit Plan has not been reduced to writingof ERISA, a written summary of all material plan terms; (iii) where applicable, copies of for which any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement OGP Subsidiaries could incur material liability under Section 4063 or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) 4064 of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was otherwise subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 (ii) provides or Section 303 promises to provide retiree medical or life insurance benefits. None of ERISA. The Company the OGP Subsidiaries has not participated in any union-maintained, sponsored multiemployer welfare benefit fund maintained pursuant or contributed to any “employee welfare benefit multiemployer plan” within the six-year period prior to the date hereof.
(c) With respect to the U.S. Employee Plans, no event has occurred and there exists no condition or set of circumstances in connection with which any of the OGP Subsidiaries or any of the Asset Sellers could be subject to any liability under the terms of or as defined in Section 3(1) a result of ERISA such U.S. Employee Plans, ERISA, the Code or any other applicable Law which would reasonably be expected to have a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA)Material Adverse Effect.
(d) Each Benefit Plan ABB has made available to Purchaser (i) copies of all bonus, incentive, stock option, restricted stock, stock appreciation rights, deferred compensation, severance plans or agreements and any forms of employment agreements of ABB or any of the OGP Subsidiaries relating to the OGP Employees employed in the United States or any person who has been establishedoffered employment in the OGP Business and (ii) copies of all plans, administered programs, agreements and maintained materially other arrangements of ABB, any of the OGP Subsidiaries or any of the Asset Sellers with or relating to the OGP Employees or the Transferred Employees employed in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code)United States which contain change of control provisions.
(e) Nothing has occurred with respect Section 3.13(e) of the Disclosure Schedule sets forth each material Non-U.S. Plan not required under applicable Law. In addition to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates orforegoing, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.each Non-U.S. Plan:
(fi) With respect all employer and employee contributions to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Non-U.S. Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan (if applicable) have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paidmade or, if applicable, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed the terms of such Non-U.S. Plan, and a pro rata contribution for the period prior to and including the Closing Date has been made or furnished accrued except for a failure to comply with such matters that would not reasonably be expected to have a Material Adverse Effect;
(ii) each Non-U.S. Plan required to be registered has been registered and maintained in accordance good standing with applicable Law regulatory and Tax authorities (and, to the knowledge of ABB, no circumstances have occurred which could reasonably be expected to result in tax approval being withdrawn). Each Non-U.S. Plan has been operated in material compliance with all applicable Laws;
(iii) ABB has made available to Purchaser, where applicable, true and complete copies of all Non-U.S. Plans, including, without limitation, all material information relating to benefits payable or prospectively payable under each Non-U.S. Plan (including supplemental benefits) membership data, most recent actuarial valuations and all material plan summaries and announcements to members with respect to OGP Employees, OGP Former Employees and Transferred Employees; and
(iv) ABB has made available to Purchaser a timely mannercomplete and accurate copy of all the material documentation (including the trust deeds, rules and booklets) governing each Non-U.S. Plan.
(f) Each of the U.S. Employee Plans which is intended to be tax-qualified under Section 401(a) or 401(k) of the Code has been determined by the IRS to be so qualified and such determination has not been modified, revoked or limited, and, to the knowledge of ABB, no circumstances have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) Except as otherwise set forth in Section 3.13(g) of the Disclosure Schedule, no plan exists which could result in the payment of money or any other property or rights, or accelerate or provide any other rights or benefits, to OGP Employees, OGP Former Employees or Transferred Employees (or other current or former service providers thereto) that would not have been required but for the transactions contemplated by this Agreement.
(h) There exists are no condition that would subject pending suits, actions, claims, arbitrations, administrative or governmental investigations or, to the Company to knowledge of ABB, threatened in writing, alleging any Liability under breach of the terms of the Benefit Plans any U.S. Employee Plan or Non-U.S. Plan or of any fiduciary duties thereunder or violation of any applicable Law relating thereto with respect to the operation of such plans (other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwiseroutine benefit claims).
(i) Other than as required by Purchaser acknowledges that (i) the representations and warranties contained in this Section 601 et. seq. of ERISA, 3.13 and Section 4980B of 3.14 are the Code only representations and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year warranties being made with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations employee benefit matters related to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; its subject matter and (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due no other representation contained in this Agreement shall apply to any such individual; (iii) limit matters and no other representation or restrict the right of the Company to mergewarranty, amend express or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Codeimplied, is being made with respect thereto.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Set forth in Section 3.20(a3.17(a) of the Disclosure Schedules contains Schedule is a true and complete list of each “"employee benefit plan” " (as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each all other benefit agreementmaterial employee benefit, programbonus, plan or arrangement, including, without limitation, each bonus planincentive, deferred compensation plancompensation, supplemental retirementstock purchase, incentive compensation or retention planstock option, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreementseverance, change in control agreementand fringe benefit plans (other than any employment or personnel policy, golden parachute agreement practice or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, procedure) maintained, administered or contributed to to, by or on behalf of any Target Company for current or former employees or directors of the Company Valves Business, or with respect to which any Target Company could incur liability under Section 4069, 4201 or 4212(c) of ERISA (collectively, all such plans of the Target Companies are hereinafter referred to as the "Target Company has or may have any Liability (each, a “Benefit Plans"). With respect to each Target Company Benefit Plan”). The , Seller has made available to Purchaser a true and complete copy of the following, if applicable: (i) the most recent summary plan description for each Target Company has never adoptedBenefit Plan for which a summary plan description is required; (ii) such Target Company Benefit Plan, entered into, maintained, sponsored, contributed to, been required and each trust agreement relating to contribute to, or had any Liability such Target Company Benefit Plan; (iii) the most recent annual report (Form 5500) filed with the IRS; and (iv) the most recent determination letter issued by the IRS with respect to, to any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify Target Company Benefit Plan qualified under Section 401(a) of the Code.
(b) With respect to each Benefit PlanTo the Knowledge of Seller, the Target Company has made available to Parent accurateBenefit Plans have been operated and administered in compliance with the terms of such Target Company Benefit Plans, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writingERISA, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks Code and any other similar written communications (applicable Law, except for any noncompliance that would not have individually or in the aggregate a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit PlanMaterial Adverse Effect.
(c) Neither Except as set forth in Section 3.17(c) of the Company nor any ERISA Affiliate has ever maintainedDisclosure Schedule, contributed to, had an obligation to contribute to, or incurred any Liability there are no outstanding agreements providing for severance payments with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 any employees of the Code Target Companies which would individually or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or the aggregate have a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA)Material Adverse Effect.
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Target Company Benefit Plan that has subjected or could reasonably is intended to be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty qualified under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D 401(a) of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due has received a favorable determination letter from the IRS that such Target Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company is so qualified except which would not have a Material Adverse Effect and, to the extent required Knowledge of Seller, no fact or event has occurred since the date of such letter that could be reasonably construed as affecting the qualified status of such Target Company Benefit Plan. No Target Company is a party to or subject to or bound by GAAP, adequate reserves are reflected on the financial statements of the any collective bargaining or other labor union contract and no collective bargaining agreement is being negotiated by any Target Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition Seller Affiliate that would subject the Company be applicable to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operationsuch persons. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no labor dispute, strike or work stoppage against any Target Company pending or, to the Company’s KnowledgeKnowledge of Seller, threatened Action relating to in writing that may interfere with the Valves Business, except where such dispute, strike or other stoppage would not have a Benefit Plan (other than routine claims for benefits)Material Adverse Effect. To the Knowledge of Seller, no Target Company, or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the Valves Business, and there is no Benefit Plan has been the subject of an examination charge or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by complaint against any Governmental Authority.
(k) There has been no amendment to, announcement Target Company by the Company National Labor Relations Board or any of its Affiliates relating tocomparable state agency pending or threatened in writing with regard to the Valves Business, except where such unfair labor practice, charge or change in employee participation or coverage under, any Benefit Plan that complaint would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicablenot have a Material Adverse Effect.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aCCI does not sponsor any Employee Plans or is it a party to any Benefit Arrangements. Schedule 3.21(a) of the Disclosure Schedules contains a true complete and complete correct list of (i) each “employee benefit plan” as that term is defined in Section 3(3Employee Plan and (ii) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandingsBenefit Arrangement, in each such caseeither instance, that is sponsored, maintained, administered or contributed to by which the Company is a party or with respect to which which, the Company has has, or may have be reasonably expected to have, any Liability obligation or which are maintained, contributed to or sponsored by, or enforceable against, the Company for the benefit of any current or former employee, consultant, officer or director of the Company (eachcollectively, a the “Benefit PlanCompany Employee Plans”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company The Seller has delivered or made available to Parent accurate, current the Buyer true and complete copies of each the following documents which set forth the terms of the followingCompany Employee Plans, as applicable: (i) where the Benefit Plan has been reduced to writing, the most recent plan document together with all amendments; and trust agreement (including any amendments thereto and prior plan documents, if amended within the last two years), (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan termsmost recent IRS determination letter; (iii) where applicable, copies of any insurance policies Forms 5500 and contracts, administration agreements and similar agreements, now in effect or required in certified financial statements for the future as a result of the transactions contemplated by this Agreement or otherwise; most recently completed three (iv3) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit fiscal years for each Company Employee Plan; and (viv) copies of material notices, letters the current summary plan or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating plan descriptions furnished to the Benefit participants and beneficiaries regarding each Company Employee Plan.
(c) Neither The Company has performed in all material respects all of its respective obligations under or in connection with all of the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISAEmployee Plans. The Company has made appropriate entries in its financial records and financial statements, including the Financial Statements and the Interim Financial Statements, for all obligations and liabilities under such Company Employee Plans and for obligations that currently are not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) due. Each Benefit Company Employee Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a) of the Disclosure Schedules Schedule 3.19 contains a true and complete list of each pension, benefit, retirement, compensation, profit-sharing, deferred compensation, incentive, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by Cocrystal for the Company benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of Cocrystal or any spouse or dependent of such individual, or under which Cocrystal has or may have any Liability, or with respect to which the Company has Biozone or may any of their Affiliates would reasonably be expected to have any Liability Liability, contingent or otherwise (as listed on Schedule 3.19, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company Cocrystal has made available to Parent Biozone accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance trust agreements or other funding arrangements, custodial agreements, nsurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the most recently filed Form 5500, with schedules attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; and (vviii) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Labor or other Governmental Authority Pension Benefit Guaranty Corporation relating to the Benefit Plan.
(c) Neither Each Benefit Plan (other than any multiemployer plan within the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or each a “multiple employer welfare arrangement” (as defined in Section 3(40Multiemployer Plan”)) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
. Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (ea “Qualified Benefit Plan”) is so qualified and has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that could reasonably be expected to cause the revocation of such determination letter from the Internal Revenue Service or the unavailability of reliance on such opinion letter from the Internal Revenue Service, as applicable, nor has such revocation or unavailability been threatened. Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates Cocrystal or, with respect to any period on or after the Closing Date, Parent or any of its AffiliatesBiozone, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax Tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f) With respect . All benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(gd) All reports and disclosures Neither Cocrystal nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or foreign Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Plans Guaranty Corporation; (iii) withdrawn from any Benefit Plan; or (iv) engaged in any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA.
(e) With respect to each Benefit Plan (i) no such plan is a Multiemployer Plan, and all contributions required to be filed with paid by Cocrystal or furnished to a Governmental Authority or plan participants or beneficiaries its ERISA Affiliates have been prepared timely paid to the applicable Multiemployer Plan; (ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in accordance Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan is subject to the minimum funding standards of Section 302 of ERISA or Section 412 of the Code; and (v) no “reportable event,” as defined in Section 4043 of ERISA, has occurred with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerrespect to any such plan.
(hf) There exists Except as required by applicable Law, no condition that would subject the Company to provision of any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can or collective bargaining agreement could reasonably be amended, terminated or otherwise discontinued after the Closing expected to result in accordance with its terms, without material liabilities to Parent, the Company any limitation on Biozone or any of their its Affiliates other than ordinary administrative expenses typically incurred in a termination eventfrom amending or terminating any Benefit Plan. The Company Cocrystal has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, amend or modify or terminate any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(ig) Other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company Cocrystal nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health welfare benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health welfare benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jh) There is no pending or, to the CompanyCocrystal’s Knowledgeknowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(ki) There has been no amendment to, announcement by the Company or any of its Affiliates Cocrystal relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates . Cocrystal has any no commitment or obligation or and has not made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amendamend or modify any Benefit Plan or any collective bargaining agreement.
(j) Each Benefit Plan that is subject to Section 409A of the Code has been operated in compliance with such section and all applicable regulatory guidance (including notices, modify or terminate any rulings and proposed and final regulations).
(k) Each individual who is classified by Cocrystal as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.
(ml) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company Cocrystal to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company Cocrystal to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; or (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “NOV Benefit Plan”)Plans. The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of separately identified in Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a3.20(a) of the CodeDisclosure Schedules each NOV Benefit Plan that (i) is a Company Plan, or (ii) is a Non-U.S. Benefit Plan.
(b) With respect to each NOV Benefit Plan, the Company Seller has made available Delivered to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit for any Company Plan that has been reduced to writing, the plan document together with all amendments, the summary plan description, any summaries of material modification, model COBRA notices and communications and any other material written communications regarding any Company Plan; (ii) where the Benefit for any Company Plan that has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements or insurance policies and contracts, administration any material agreements and similar agreements, with service providers to such Company Plans now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) for any NOV Benefit Plan, copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any or other similar material written communications (or a description of any oral communications); (v) relating in the case of any NOV Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service and any legal opinions issued thereafter with respect to such NOV Benefit Plan’s continued qualification; (vi) in the case of any NOV Benefit Plan for which a Form 5500 must be filed, a copy of the most recently filed Form 5500, with all corresponding schedules and financial statements attached; and (vvii) for any Company Plan, copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit such Company Plan.
(c) Neither Except as set forth in Section 3.20(c) of the Disclosure Schedules, each Company nor Plan and any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred related trust (other than any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or each a “multiple employer welfare arrangement” (as defined in Section 3(40Multiemployer Plan”)) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in material compliance with all applicable Laws (including ERISA ERISA, the Code and any applicable local Laws). Each NOV Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code is so qualified and received a favorable and current determination letter from the Internal Revenue Service with respect to the most recent five year filing cycle, or with respect to a prototype or volume submitter plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan or volume submitter plan sponsor, to the effect that such plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) , and, to Seller’s Knowledge, nothing has occurred that could reasonably be expected to adversely affect the qualified status of any such plan. Nothing has occurred with respect to any Benefit Company Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code. Neither Company nor any Subsidiary have acted as a Plan administrator, fiduciary or trustee of any NOV Benefit Plan.
(fd) With No pension plan (other than a Multiemployer Plan) which is subject to minimum funding requirements, including any multiple employer plan, (each, a “Single Employer Plan”) in which Employees participate or have participated has an “accumulated funding deficiency”, whether or not waived, or is subject to a lien for unpaid contributions under Section 303(k) of ERISA or Section 430(k) of the Code. No Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any NOV Benefit Plan which is a Single Employer Plan or to appoint a trustee for any such plan; and no “reportable event,” as defined in Section 4043 of ERISA, with respect to each Benefit Planwhich the reporting requirement has not been waived has occurred with respect to any such plan. Except as set forth in Section 3.20(d) of the Disclosure Schedules, all payments due from the Company benefits, contributions or premiums relating to any NOV Benefit Plan have either been timely made paid in accordance with the terms of such Benefit Plan plan, applicable Laws and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in fullaccounting principles. All benefits accrued under in any unfunded NOV Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP. None of the Company, any Subsidiary, Buyer or any of Buyer’s Affiliates will have any liability for any pre-Closing Date premiums, contributions or benefit accruals to any NOV Benefit Plan or Company Plan after the Closing Date, and none of the Company, any Subsidiary, Buyer or any of Buyer’s Affiliates will have any other liability of any kind with respect to the pre-Closing operation or benefit obligations of any NOV Benefit Plan or any Company Plan.
(e) All Non-U.S. Benefit Plans that are intended to be funded and/or book-reserved are funded and/or book-reserved, as appropriate, based upon reasonable actuarial assumptions.
(f) Except as set forth in Section 3.20(f) of the Disclosure Schedules, (A) no NOV Benefit Plan or Company Plan is a Multiemployer Plan, (B) all contributions required to be paid by the Company or its ERISA Affiliates have been timely paid to the applicable Multiemployer Plan; (C) neither the Company nor any ERISA Affiliate has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied, and (D) a complete withdrawal from all such Multiemployer Plans at the Closing Date would not result in any withdrawal liability to the Company or any Subsidiary and no Multiemployer Plan is in critical, endangered or seriously endangered status or has suffered a mass withdrawal.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Each Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to ParentBuyer, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Company Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(ih) Other Except as set forth in Section 3.20(h) of the Disclosure Schedules and other than as required by Section under Sections 601 et. seq. to 608 of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no NOV Benefit Plan or Company Plan provides post-termination or retiree health benefits to any individual for any reason, and neither director of the Company nor or any of its ERISA Affiliates has any Liability to provide post-termination Subsidiary or retiree health benefits to any individual Employee or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Lawformer Employee.
(ji) There Except as set forth in Section 3.20(i) of the Disclosure Schedules, there is no pending or, to the CompanySeller’s Knowledge, threatened Action relating to a Benefit Company Plan (other than routine claims for benefits), and no Benefit Company Plan has within the three (3) years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kj) There has been no amendment to, announcement by Seller, the Company or any of its their Affiliates relating to, or change in employee participation or coverage under, any Benefit Company Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year (other than on a de minimis basis) with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither . None of Seller, the Company Company, nor any of its their Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Company Plan or any collective bargaining agreement.
(k) Each Company Plan that is subject to Section 409A of the Code has been administered in compliance in all material respects with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. The Company does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(l) Each individual who is classified by the Company as an independent contractor has been properly classified for purposes of participation and benefit accrual under each NOV Benefit Plan or Company Plan.
(m) Neither Except as set forth in Section 3.20(m) of the Disclosure Schedules, neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company Employee to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend amend, or terminate any Benefit Company Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Company Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment by the Company or any Subsidiary to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board The representations and warranties set forth in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactivelythis Section 3.20 are Seller’s sole and exclusive representations and warranties regarding employee benefit matters.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Northwest Pipe Co)
Employee Benefit Matters. (a) Section 3.20(aSchedule 3.13(a) sets forth and Katy has made available to Purchaser ---------------- copies of the Disclosure Schedules contains a true governing documents, summary plan descriptions, returns, reports, financial statements, actuarial reports and complete list related employee communications of each “the following kinds of employee benefit plan” as that term is defined in Section 3(3plans (individually, a "Katy Benefit Plan," and collectively, the "Katy Benefit Plans") of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is which are sponsored, maintained, administered maintained or contributed to by the Company Katy or any Subsidiary or any corporation, trade, business or entity under common control with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” Katy within the meaning of Section 3(2sections 414(b), (c), (m) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a(o) of the Code.
Code (beach, an "ERISA Affiliate") With respect to each Benefit Plan, for the Company has made available to Parent accurate, current and complete copies of each benefit of the following: employees of Katy or any Subsidiary:
(i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, each "employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer benefit plan", as such term is defined in Sections 3(37) or 4001(a)(3section 3(3) of ERISA or the Employee Retirement Income Security Act of 1974, as amended ("ERISA") (including, but not limited to, employee benefit plans which are not subject to the provisions of ERISA); and
(ii) each policy or practice described in an employee pension handbook, stock option plan, restricted stock plan, collective bargaining agreement, cash or stock bonus plan or arrangement, incentive award plan or arrangement, severance pay plan, policy, or agreement, deferred compensation agreement or arrangement, executive compensation or supplemental income arrangement, consulting agreement, employment agreement, and each other employee benefit plan, agreement, arrangement, program, practice, or understanding which is not described in Section ------- 3.13
(a) (i). ----------
(b) There has been made available to Purchaser, with respect to each Katy Benefit Plan required to file such report and description, the most recent report on Form 5500 and the summary plan description. There has been made available to Purchaser with respect to each Katy Benefit Plan which is a defined benefit plan subject to the minimum funding requirements of ERISA the most recent actuarial valuation prepared by the actuaries for the plan.
(as defined c) Except for the Katy Benefit Plans disclosed in Section 3(2) Schedule 3.13(c), ---------------- Katy and the Subsidiaries do not contribute to or have an obligation to contribute to any employee benefit plan that is subject to section 302 of ERISA) that is , section 412 of the Code, or was subject to Title IV of ERISA or Section 412 or Section 430 (including, without limitation, a multiemployer plan within the meaning of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40section 3(37) of ERISA). Assets of any single-employer qualified plan listed in Schedule 3.13(c) are at least equal to ---------------- liabilities accrued to the Closing Date as of the date of the most recently audited financial statements of Katy and its Subsidiaries.
(d) Each Benefit Plan No complete or partial withdrawal liability (within the meaning of section 4201 of ERISA) with respect to any multiemployer plan (within the meaning of section 3(37) of ERISA) has been establishedincurred, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code)which withdrawal liability has not been satisfied and, to Katy's Knowledge, no liability is expected to be incurred.
(e) Nothing has occurred with respect Except as would not have, individually or in the aggregate, a Material Adverse Effect on the Katy Group (excluding for purposes of applying the foregoing standard of materiality the representation in clauses (A) and (B) of subparagraph (vi) below, which shall not be subject to any standard of materiality):
(i) Each Katy Benefit Plan that conforms to and has subjected been administered and operated in compliance with its governing documents and applicable laws and regulations whether domestic or could reasonably be expected to subject foreign, including, where applicable, ERISA and the Company or Code, and neither Katy nor any of its ERISA Affiliates orSubsidiaries is in default of its respective obligations under any Katy Benefit Plan, with respect and, to Katy's Knowledge, there have been no defaults or violations by any period on or other party to the Katy Benefit Plans;
(ii) Each Katy Benefit Plan intended to be qualified under section 401 of the Code (A) satisfies in form the requirements of such section except to the extent amendments are not required by law to be made until a date after the Closing Date, Parent (B) has received a favorable determination letter from the Internal Revenue Service regarding such qualified status, (C) has not, since receipt of the most recent favorable determination letter, been amended, except for amendments for which the period for requesting a favorable determination letter has not expired, and (D) has not been operated in a way that would adversely affect its qualified status;
(iii) There are no actions, suits, or claims pending (other than routine claims for benefits) or, to Katy's Knowledge, threatened against, or with respect to, any of the Katy Benefit Plans or their assets;
(iv) No act, omission or transaction has occurred which would result in imposition on Katy or any Subsidiary of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a (A) breach of fiduciary duty liability damages under Section section 409 of ERISA; (B) a civil penalty assessed pursuant to subsections (c), (i) or (1) of section 502 of ERISA; (C) a tax imposed pursuant to tax or penalty under Chapter 43 of Subtitle D of the Code; (D) a lien upon property or rights under section 302 (f)(l)(A)and (B) of ERISA for failure to make a required payment to a plan; or (E) the Pension Benefit Guaranty Corporation instituting proceedings to terminate the plan;
(v) There is no matter pending (other than routine qualification determination filings) with respect to any of the Katy Benefit Plans before any governmental authority;
(vi) With respect to each Katy Benefit Plan, (A) no liability to the Pension Benefit Guaranty Corporation has been incurred, which liability has not been satisfied (other than for premiums not yet due), (B) no accumulated funding deficiency, whether or not waived, within the meaning of section 302 of ERISA or section 412 of the Code has been incurred, and (C) no event has occurred, and, to Katy's Knowledge, there exists no condition or set of circumstances in connection with which Katy or any Subsidiary would reasonably, directly or indirectly, be expected to become subject to any liability under ERISA, the Code or Sections 6652, 4975 or 4980H any applicable law except liability for benefit claims and payments in the ordinary course; and
(vii) Except for the conversion of the CodeConvertible Preferred Stock into Common Shares, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not (A) require Katy or any Subsidiary to make payments of money or other property to, make a larger contribution to, or pay greater, more accelerated or supplementary benefits or provide other rights under, including, without limitation, funding liabilities that are currently unfunded, any Katy Benefit Plan than it otherwise would, whether or not some other subsequent action or event (together with the Recapitalization) would be required to cause such payment or provision to be triggered, or (B) create or give rise to any additional vested rights or service credits under any Katy Benefit Plan.
(f) With respect to each Benefit Plan, all payments due from Except for the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books conversion of the Company andConvertible Preferred Stock into Common Shares, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions Recapitalization no payments of money or other property, acceleration of benefits, or provisions of other rights have or will be made hereunder, under any agreement contemplated by this Agreement herein, or otherwiseunder the Katy Benefit Plans that would be reasonably likely to result in imposition of sanctions or taxes imposed under sections 280G and 4999 of the Code, whether or not some other subsequent action or event would be required to cause such payment, acceleration, or provision to be triggered.
(ig) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of Except for the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”Katy Benefit Plans disclosed in Schedule 3.13(g), no ---------------- Katy Benefit Plan which is an employee welfare plan provides post-termination benefits (whether or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jnot insured) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former directoremployee of Katy or its Subsidiaries, officer, employee, independent contractor which continue beyond their retirement or consultant other termination of service other than coverage mandated by section 4980 of the Company to severance pay Code or any other payment; (ii) accelerate the time sections 601-609 of payment, funding ERISA or vesting, or increase the amount comparable provisions of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Codestate law.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Preferred Stock Purchase and Recapitalization Agreement (Katy Industries Inc)
Employee Benefit Matters. (a) Section 3.20(a5.19(a) of the Disclosure Schedules contains a true and complete list of each “pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock, unit, stock-based or unit-based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each "employee benefit plan” as that term is defined in " within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, program, plan which is or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, been maintained, sponsored, contributed to, been or required to contribute be contributed to by Sellers for the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Business or any spouse or dependent of such individual, or under which Sellers or any of their ERISA Affiliates has or may have any Liability, or with respect to which Buyer or any of its Affiliates would reasonably be expected to have any Liability, contingent or otherwise (as listed on Section 5.19(a) of the Disclosure Schedules, each, a "Benefit Plan"). Sellers have separately identified in Section 5.19(a) of the Disclosure Schedules each Benefit Plan that is maintained, sponsored, contributed to, or had any Liability with respect to, any “employee pension required to be contributed to by Seller primarily for the benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) employees of the CodeBusiness outside of the United States (a "Non-U.S. Benefit Plan").
(b) With respect to each Benefit Plan, the Company has Sellers have made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Form 5500, with schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Neither Except as set forth in Section 5.19(c) of the Company nor Disclosure Schedules, and to the Knowledge of Sellers each Benefit Plan and related trust (other than any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA or (iieach a "Multiemployer Plan")) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms in all material respects and is in compliance with all applicable Laws (including ERISA and the Code and any applicable local Laws) in all material respects. Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a "Qualified Benefit Plan") is a prototype plan, and to the Knowledge of Sellers may rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) , nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan to Sellers’ Knowledge. Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company Sellers or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f. Except as set forth in Section 5.19(c) With respect of the Disclosure Schedules, all benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance withwith GAAP. All Non-U.S. Benefit Plans that are intended to be funded and/or book-reserved are funded and/or book-reserved, GAAPas appropriate, based upon reasonable actuarial assumptions.
(gd) All reports and disclosures Neither Sellers nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Plans required Guaranty Corporation; (iii) withdrawn from any Benefit Plan; or (iv) engaged in any transaction which would give rise to be filed with liability under Section 4069 or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerSection 4212(c) of ERISA.
(he) There exists Seller has no condition that would Multiemployer Plan and has never had a Multiemployer Plan. Seller has no Defined Benefit Plan and has never maintained a Defined Benefit Plan or other Plan subject the Company to any Liability minimum funding standards under the terms of the Benefit Plans Code or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwiseERISA.
(if) Other Except as set forth in Section 5.19(f) of the Disclosure Schedules and other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan or other arrangement provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jg) There Except as set forth in Section 5.19(g) of the Disclosure Schedules, there is no pending or, to the Company’s Sellers’ Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three (3) years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kh) There has been no amendment to, announcement by the Company Sellers or any of its their Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, consultant or independent contractor or consultantof the Business, as applicable.
(l) . Neither the Company Sellers nor any of its their Affiliates has have any commitment or obligation or has made any representations to any director, officer, employee, consultant or independent contractor or consultantof the Business, whether or not legally binding, to adopt, amend, modify or terminate any Benefit PlanPlan or any collective bargaining agreement.
(mi) Neither To Sellers’ Knowledge each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including, notices, rulings and proposed and final regulations) thereunder. Sellers do not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(j) Except as disclosed to Buyer in a report of Sellers’ wages, bonuses, compensation programs and benefits provided to Buyer on or about July 11, 2015, neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company Business to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (viv) result in “"excess parachute payments” " within the meaning of Section 280G(b) of the Code; or (viv) require a “"gross-up” " or other payment to any “"disqualified individual” " within the meaning of Section 280G(c) of the Code.
. Sellers have made available to Buyer true and complete copies of any Section 280G calculations prepared (nwhether or not final) All Options have been duly authorized by the Company Board with respect to any disqualified individual in compliance connection with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactivelytransactions.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a4.19(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit, retirement, employment, compensation, incentive, stock option, restricted stock, stock appreciation right, phantom equity, change in control, severance, vacation, paid time off, fringe-benefit and other similar agreement, plan” as that term is defined in Section 3(3) of ERISA , policy, program and other arrangement (and any amendments thereto), whether or not such plan is subject reduced to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandingswriting, in each effect and covering one or more Employees, former employees, temporary employees, consultants and contract workers and the beneficiaries and dependents of any such caseEmployee or former employee, temporary employee, consultant and contract worker of the Business, that is maintained, sponsored, maintainedcontributed to, administered or required to be contributed to by the Company Seller, or with respect to under which the Company Seller has or may have any Liability liability for premiums or benefits (as listed on Section 4.19(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company Seller has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; , (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; , (iii) where applicable, copies of any trust agreements, custodial agreements, insurance policies and contractspolicies, administration agreements and similar agreements and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other or similar written employee communications (or a description of any oral communications) relating to any Benefit Plan; , (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination letter from the Internal Revenue Service, (vi) in the case of any Benefit Plan for which Forms 5500 are required to be filed, a copy of the most recently filed Forms 5500, with schedules attached, and (vvii) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Labor or other Governmental Authority Pension Benefit Guaranty Corporation relating to the Benefit Plan.
(c) Neither Each Benefit Plan complies in all material respects with all applicable Laws (including ERISA and the Company nor any ERISA Affiliate Code and the regulations promulgated thereunder). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a “Qualified Benefit Plan”) has ever maintained, contributed to, had an obligation to contribute toreceived a favorable and current determination letter from the Internal Revenue Service, or incurred any Liability with respect toto a prototype plan, either can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that could reasonably be expected to cause the revocation of such determination letter from the Internal Revenue Service or the unavailability of reliance on such opinion letter from the Internal Revenue Service, as applicable. Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject Seller or, with respect to any period on or after the Closing Date, Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA or to an excise tax under the Code. All benefits, contributions and premiums relating to each Benefit Plan have been timely paid in accordance with the terms of such Benefit Plan, the terms of all applicable Laws and the accounting principles. With respect to any Benefit Plan, no event has occurred or is reasonably expected to occur that has resulted in or would subject Seller or, with respect to any period on or after the Closing Date, Buyer or any of its Affiliates, to a Tax under Section 4971 of the Code or the assets of any of the foregoing Persons to a lien under Section 412(n) of the Code.
(d) No Benefit Plan (i) a multiemployer planprovides for defined benefit pension benefits, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan is a “multiemployer plan” (as defined in Section 3(23(37) of ERISA) that or (iii) is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(de) Each Neither Seller nor any of its Affiliates (i) has withdrawn from any pension plan under circumstances resulting (or expected to result) in a liability to the Pension Benefit Guaranty Corporation, (ii) has any assets subject to a lien for unpaid contributions to any Benefit Plan which would be a liability of Seller or become a liability of Buyer, (iii) has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and failed to pay premiums to the Code).
(e) Nothing has occurred Pension Benefit Guaranty Corporation when due with respect to any Benefit Plan that has subjected pension plan which would be a liability of Seller, or could reasonably be expected (iv) is engaged in any transaction which would give rise to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty liability under Section 502 4069 or Section 4212(c) of ERISA, to any ERISA which would be a liability for of Seller or become a breach liability of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the CodeBuyer.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-benefits or coverage in the nature of health, life or disability insurance following retirement or other termination or retiree health of employment (other than death benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-when termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Lawoccurs upon death).
(jg) There is no pending or, to the CompanySeller’s Knowledge, threatened Action action relating to a Benefit Plan (other than routine claims for benefits)Plan, and no Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or is the subject of an application or filing under under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kh) There has been no amendment to, announcement by the Company Seller or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred therefore for the most recently completed recent fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Employee. Neither the Company Seller nor any of its Affiliates or Shareholders has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultantEmployee, whether or not legally binding, to adopt, amend, amend or modify or terminate any Benefit PlanPlan including as related to health reform legislation.
(mi) Neither Each Benefit Plan that is subject to Section 409A of the Code has been operated in compliance with such Section and all applicable regulatory guidance (including proposed regulations, notices, rulings, and final regulations).
(j) No Benefit Plan exists that could (i) result in the payment to any Employee of any money or other property, or (ii) accelerate or provide any other rights or benefits (including funding of compensation or benefits through a trust or otherwise) to any Employee, except as a result of any partial plan termination resulting from this Agreement, in each case, as a result of the execution of this Agreement nor or otherwise related in any of way to the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the CodeAgreement.
(nk) All Options have been duly authorized by the Company Board Seller is not a party to and has no obligations related to any multiemployer Plan, as described in compliance with the terms Section 4001(a)(3) of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactivelyERISA.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a3.21(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit, retirement, employment, compensation, incentive, stock option, restricted stock, stock appreciation right, phantom equity, change in control, severance, vacation, paid time off, fringe-benefit and other similar agreement, plan” as that term is defined in Section 3(3) of ERISA , policy, program and other arrangement (and any amendments thereto), whether or not such plan is subject reduced to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandingswriting, in each effect and covering one or more Employees, former employees, officers or directors and the beneficiaries and dependents of any such caseEmployee, that former employee, officer or director of the Company, and is maintained, sponsored, maintainedcontributed to, administered or required to be contributed to by the Company Company, or with respect to under which the Company has or may have any Liability liability for premiums or benefits, or with respect to which Buyer or any of its Affiliates would reasonably be expected to have any liability, contingent or otherwise (as listed on Section 3.21(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has Sellers have made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements, custodial agreements, insurance policies and contractspolicies, administration agreements and similar agreements, now in effect and investment management or required in the future as a result of the transactions contemplated by this Agreement or otherwiseinvestment advisory agreements; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other or similar written employee communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which Forms 5500 are required to be filed, a copy of the most recently filed Forms 5500, with schedules attached; and (vvii) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Labor or other Governmental Authority Pension Benefit Guaranty Corporation relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute toEach Benefit Plan complies, or incurred any Liability with respect to, either (i) in the case of each Benefit Plan that is a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) to the Knowledge of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been establishedeach Seller, administered and maintained materially in accordance with its terms and in compliance complies, with all applicable Laws (including ERISA ERISA, and the Code and the regulations promulgated thereunder). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a “Qualified Benefit Plan”) has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) , and nothing has occurred that could reasonably be expected to cause the revocation of such determination letter from the Internal Revenue Service or the unavailability of reliance on such opinion letter from the Internal Revenue Service, as applicable. Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to an excise tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect . All benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan Plan, the terms of all applicable Laws and applicable Law the accounting principles. With respect to any Benefit Plan, no event has occurred or are properly recorded as liabilities is reasonably expected to occur that has resulted in or would subject the Company or with respect to any period on or after the books Closing Date, Buyer or any of its Affiliates, to a Tax under Section 4971 of the Company and, to Code or the extent required by GAAP, adequate reserves are reflected on the financial statements assets of any of the Company foregoing Persons to a lien under Section 430(k) of the Code, Section 303(k) of 4068 of ERISA, or arising out of any Action filed under Section 4301(b) of ERISA.
(d) No Benefit Plan (i) provides for such amounts. All premiums required defined benefit pension benefits; (ii) is a “multiemployer plan” (as defined in Section 3(37) of ERISA); or (iii) is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), and no Employee is, or at any time will become, entitled to be paid for each insurance policy funding all any payment, benefit or right, or any portion increased or accelerated payment, benefit or right, or any payment of the benefits any amount under any Benefit Plan have been timely paid that could individually or in full. All benefits accrued under combination with any unfunded Benefit Plan have been paidother such payment constitute an “excess parachute payment” as defined in Section 280G(b)(l) of the Code or fail to be deductible by reason of Sections 162 or 404 of the Code, accrued as a result of the execution of this Agreement or otherwise adequately reserved to the extent required by, and in accordance with, GAAPconsummation of the transactions contemplated hereby.
(ge) All reports and disclosures relating to the No provision of any Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans Plan, collective bargaining agreement or applicable Law relating thereto other than could reasonably be expected to result in any payment of benefits in limitation the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to ParentCompany, the Company Buyer or any of their its Affiliates other than ordinary administrative expenses typically incurred in a termination eventfrom amending or terminating any Benefit Plan or agreement with respect to any Benefit Plan. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultantEmployee, whether or not legally binding, to adopt, amend, amend or modify or terminate any Benefit Plan or any collective bargaining agreement in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(f) Neither any Seller, the Company or any of their respective Affiliates (i) has withdrawn from any pension plan under circumstances resulting (or expected to result) in a liability to the Pension Benefit Guaranty Corporation; (ii) has any assets subject to a lien for unpaid contributions to any Benefit Plan which would be a liability of the Company or become a liability of Buyer; (iii) has failed to pay premiums to the Pension Benefit Guaranty Corporation when due with respect to any pension plan which would be a liability of the Company; or (iv) is engaged in any transaction which would give rise to liability under Sections 4212(c), 4062, 4063, 4064 or 4069 of ERISA which would be a liability of the Company or become a liability of Buyer.
(g) Other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-benefits or coverage in the nature of health, life or disability benefits following retirement or other termination or retiree health of employment (other than life insurance benefits to any individual for any reason, and neither the Company nor any when termination of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Lawemployment occurs as a result of death).
(jh) There is no pending or, to the Knowledge of the Company’s Knowledge, threatened Action action relating to a Benefit Plan (other than routine claims for benefits)Plan, and no Benefit Plan has within the three (3) years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or is the subject of an application or filing under under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(ki) There has been no amendment to, announcement by any Seller, the Company or any of its their respective Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred therefore for the most recently completed recent fiscal year with respect to any directorEmployee. None of Sellers, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor or any of its their respective Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultantEmployee, whether or not legally binding, to adopt, amend, amend or modify or terminate any Benefit PlanPlan or any collective bargaining agreement.
(mj) Neither From December 31, 2011 to the execution date hereof, the terms of this Agreement nor any each Benefit Plan that is subject to Section 409A of the transactions contemplated by this Agreement will Code comply with such section and each such Benefit Plan has been operated in compliance with such section and all applicable regulatory guidance (either alone or upon the occurrence of any additional or subsequent events): including, without limitation, proposed regulations, notices, rulings, and final regulations).
(k) No Benefit Plan exists that could (i) entitle result in the payment to any current Employee of any money or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other paymentproperty; (ii) accelerate the time of payment, or provide any other rights or benefits (including funding or vesting, or increase the amount of compensation (including stock-based compensationor benefits through a trust or otherwise) due to any such individualEmployee; or (iii) limit or restrict the right ability of the Company Buyer or its Affiliates to merge, amend or terminate any Benefit Plan, in each case, as a result of the execution of this Agreement or otherwise related in any way to the transactions contemplated by this Agreement.
(l) With respect to any multiemployer Plan, as described in Section 4003(a)(3) of ERISA (“MPPAA Plan”): (i) all contributions required to be made with respect to Employees of the Company have been timely paid; (ivii) increase the amount payable Company has not incurred, and will not incur, directly or indirectly, any withdrawal liability under or result in any other material obligation pursuant ERISA with respect to any Benefit Plansuch MPPAA Plan (whether by reason of the transactions contemplated by this Agreement or otherwise); and (viii) result no such MPPAA Plan is, or is it expected to be, insolvent or in “excess parachute payments” within the meaning reorganization and no accumulated funding deficiency (as defined in Section 304 of ERISA and Section 280G(b) 431 of the Code; ), whether or (vi) require a “gross-up” not waived, exists or other payment is expected to exist, with respect to any “disqualified individual” within the meaning of Section 280G(c) of the Codesuch MPPAA Plan.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a) of the Disclosure Schedules contains will set forth a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity or other equity, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by the Company for the benefit of any current or former employee, officer, manager, retiree, independent contractor or consultant of the Company, or any spouse or dependent of such individual, or under which the Company or any of its ERISA Affiliates has or may have any Liability, or with respect to which the Company has Buyer or may any of its Affiliates would reasonably be expected to have any Liability Liability, contingent or otherwise (as listed on Section 3.20(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has Sellers have made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Form 5500, with schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Neither Each Benefit Plan and related trust (other than any multiemployer plan within the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or each a “multiple employer welfare arrangement” (as defined in Section 3(40Multiemployer Plan”) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and and, to Sellers’ Knowledge, in compliance with all applicable Laws (including ERISA ERISA, the Code and any applicable local Laws). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a “Qualified Benefit Plan”) is so qualified and has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) , and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. Nothing has occurred with respect to any Benefit Plan that has subjected or could would reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f) With respect . All benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(gd) All reports and disclosures None of the Company or any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Plans Guaranty Corporation; (iii) withdrawn from any Benefit Plan; or (iv) engaged in any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA.
(e) With respect to each Benefit Plan (i) no such plan is a Multiemployer Plan, and (A) all contributions required to be filed with paid by the Company or furnished to a Governmental Authority or plan participants or beneficiaries any of its respective ERISA Affiliates have been prepared timely paid to the applicable Multiemployer Plan, (B) none of the Company or any of its ERISA Affiliates has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied, and (C) a complete withdrawal from all such Multiemployer Plans at the Effective Time would not result in accordance any material liability to the Company; (ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA, and none of the assets of the Company or any ERISA Affiliate is, or may reasonable be expected to become, the subject of any lien arising under Section 302 of ERISA or Section 412(a) of the Code; and (v) no “reportable event,” as defined in Section 4043 of ERISA, has occurred with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerrespect to any such plan.
(hf) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated terminated, or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to ParentBuyer, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no does not have a commitment or obligation and obligation, nor has not it made any representations to any employee, officer, directormanager, independent contractor contractor, or consultant, whether or not legally binding, to adopt, amend, modify modify, or terminate any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(ig) Other Except as set forth in Section 3.20(g) of the Disclosure Schedules and other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reason, and neither none of the Company nor or any of its ERISA Affiliates has any Liability to provide post-termination or retiree health welfare benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health welfare benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jh) There is no pending or, to the Company’s Sellers’ Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three (3) years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(ki) There has been no amendment to, announcement by Sellers, the Company or any of its their Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any directormanager, officer, employee, independent contractor or consultant, as applicable.
(l) Neither . None of Sellers, the Company Company, nor any of its their respective Affiliates has have any commitment or obligation or has made any representations to any directormanager, officer, employee, independent contractor contractor, or consultant, whether or not legally binding, to adopt, amend, modify modify, or terminate any Benefit Plan or any collective bargaining agreement.
(j) Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings, and proposed and final regulations) thereunder. The Company has no obligation to gross up, indemnify, or otherwise reimburse any individual for any excise taxes, interest, or penalties incurred pursuant to Section 409A of the Code.
(k) Each individual who is classified by the Company as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.
(ml) Neither Except as set forth on Section 3.20(l) of the Disclosure Schedules, neither the execution of this Agreement nor the consummation of any of the transactions contemplated by this Agreement will (either alone will, individually or upon the occurrence of any additional or subsequent events): collectively: (i) entitle any current or former directormanager, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Fat Brands, Inc)
Employee Benefit Matters. (a) Section 3.20(a3.13(a) of the Company’s Disclosure Schedules contains a true Schedule sets forth an accurate and complete list of each “employee benefit plan” as Company Plan, if any, and Company has made available to the Purchaser an accurate and complete copy of each Company Plan that term is defined in Section 3(3) has been reduced to writing. Each Company Plan has been operated and administered, and the Company has performed all of ERISA (whether or not such plan is subject to ERISA) and its obligations under each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandingsCompany Plan, in each case in all material respects in accordance with the terms of such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the CodePlan and applicable Law.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete the purchaser copies of each of the following: (i) where the Benefit Plan has been reduced to writingeach employment, the plan document together severance and change of control Contract with all amendmentsany executive officer; and (ii) where each Contract or plan binding the Benefit Plan has not been reduced to writingCompany, a written summary of all material including, any stock option plan, stock appreciation right plan, restricted stock plan, stock purchase plan, severance benefit plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Company Plan.
(c) Neither For each Company Plan, if any, the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation Seller have made available to contribute to, or incurred any Liability with respect to, either the Purchaser (i) a multiemployer plancopy of the annual report and actuarial report, as if required under any applicable Law, with respect to such term is defined in Sections 3(37Company Plan for the last two (2) or 4001(a)(3) of ERISA or plan years ending prior to the date hereof, (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that if any Company Plan is funded or was subject to Title IV of ERISA managed through a trust or Section 412 or Section 430 any funding vehicle, a copy of the Code trust or Section 302 or Section 303 other funding Contract (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date thereof and (iii) a copy of ERISA. The the most recent “summary plan description,” together with each “summary of material modifications,” if required under any applicable Law, with respect to such Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA)Plan.
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates There are no pending or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements Knowledge of the Seller, threatened audits, investigations, Proceedings or claims involving any Company for such amounts. All premiums required to be paid for each insurance policy funding all or Plan by any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared other Person, other than routine claims for benefits. Except as may be provided in accordance with applicable Law and filed or furnished any employment Contract currently in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject effect between the Company and any current or former Employee (a copy of which has been provided to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amendedPurchaser), terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
hereby shall not (i) Other than as required by Section 601 et. seq. result in the termination of ERISAany Company Plan, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended(ii) result in any payment becoming due, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither increase the Company nor any amount of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending orcompensation due, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor Employee or consultant director of the Company, (iii) increase any benefits payable under any Company to severance pay Plan, or any other payment; (iiiv) accelerate the time of payment, funding payment or vesting, or increase the amount of compensation (including stock-based compensation) of, or otherwise enhance, any benefit due to any such individual; current or former Employee or director of the Company.
(iiie) limit or restrict the right Except as set forth in Section 3.13(e) of the Company Disclosure Schedule, each Employee pension or retirement fund (if any) included in the Company Plans, if any, is actuarially sound and adequately funded to merge, amend satisfy all Liabilities accrued thereunder or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Coderespect thereof.
(nf) All Options have been The Company has complied in all material respects with all Laws and/or Contracts relating to employment, wages, employee benefits, health and safety of employees and withholding of taxes and social security contributions; has withheld and duly authorized segregated, deposited and paid over to the appropriate authorities or other Persons all amounts required by Law or Contract to be withheld from the Company Board in compliance wages of its employees, including but not limited to contributions to the Philippine Social Security System, National Health Insurance Program and Home Development Mutual Fund; and is not liable for any arrears of wages or benefits or any taxes or penalties for failure to comply with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactivelyforegoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Value Exchange International, Inc.)
Employee Benefit Matters. (a) Section 3.20(a) Schedule 2.14 of the Disclosure Schedules contains will contain a true and complete list of all plans, contracts, programs and arrangements, including, but not limited to, employment agreements, union contracts and supplemental agreements, pensions, profit sharing arrangements, bonuses, deferred compensation, retirement, stock option, severance, medical and hospitalization, insurance, vacation, dependent care, salary continuation, severance and other employee benefit plans, programs or arrangements, now or at any time maintained by Xxxxxxxxx or under which Xxxxxxxxx has or had any obligations in respect of any employee of Xxxxxxxxx (the "Xxxxxxxxx Plans"). All current and prior material documents, including all amendments thereto, with respect to each “Xxxxxxxxx Plan will be listed on Schedule 2.14 of the Disclosure Schedules and will be delivered to Xxxxxxx'x on or before the delivery of such Disclosure Schedules. With respect to each "employee benefit plan” as that term is defined in ", within the meaning of Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974, as amended (whether "ERISA"), as will be listed in Schedule 2.14 of the Disclosure Schedules, true and complete copies of the following will be delivered to Xxxxxxx'x on or not before the delivery of such Disclosure Schedules: (i) all current and prior plan is subject to ERISAand trust documents, if any, and summary plan descriptions relating thereto, (ii) the three most recent annual actuarial valuation reports, if any, (iii) the five most recently filed Form 5500s or 5500-C/Rs and each other benefit agreementSchedules A, programB and P thereto, plan or arrangementas applicable, including(iv) all IRS rulings, without limitationif any, each bonus planand (v) the most recent IRS determination letter, deferred compensation planif any.
(b) Except as specifically set forth in Schedule 2.14 of the Disclosure Schedules, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which any and all of the Company has or may have any Liability Xxxxxxxxx Plans: (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “i) all the "employee pension benefit plan” plans", within the meaning of Section 3(2) of ERISA, whether or not subject to ERISAbe listed in Schedule 2.14 of the Disclosure Schedules, or any plan intended and the trusts, if any, forming a part thereof (each referred to qualify herein as a "Pension Plan and Trust") now meet, and since their inception have met, the requirements for qualification under Section 401(a) of the Code.
(bCode and are now, and since their inception have been, exempt from taxation under Section 501(a) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendmentsCode; (ii) where the Benefit IRS has issued a favorable determination letter with respect to the qualified status of each Pension Plan and Trust, if any, and has not been reduced taken any action to writing, a written summary of all material plan termsrevoke such letter; (iii) where applicableXxxxxxxxx has performed all obligations required to be performed by it under the Xxxxxxxxx Plans (including, copies but not limited to, the making of all contributions required by any collective bargaining agreement), is not in default under or in violation of, and has no knowledge of any insurance policies such default or violation by any other party to, any and contracts, administration agreements and similar agreements, now in effect or required in the future as a result all of the transactions contemplated by this Agreement or otherwiseXxxxxxxxx Plans; (iv) copies to the best of Xxxxxxxxx'x knowledge, Xxxxxxxxx is in compliance with the requirements prescribed by any summary plan descriptionsand all statutes, summaries of material modificationsorders or governmental rules or regulations applicable to such Xxxxxxxxx Plans, summaries of benefits including but not limited to ERISA and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Planthe Code; and (v) copies of material noticesneither Xxxxxxxxx nor, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(cbest knowledge of the Shareholders, any other "disqualified person" or "party in interest", within the meanings of Section 4975 of the Code and Section 3(14) Neither the Company nor of ERISA, respectively, has engaged in any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan"prohibited transaction", as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 4975 of the Code or Section 302 or Section 303 406 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates orwhich could, with respect to any period on or after following the Closing Date, Parent subject any Xxxxxxxxx Plan (or its related trust), Crowley's, Steinbach, or any officer, director or employee of its Affiliates, to a penalty under Section 502 of ERISAXxxxxxx'x or Xxxxxxxxx, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to material tax or penalty imposed under Chapter 43 of Subtitle D of the Code or Sections 6652ERISA; (vi) there are no material actions, 4975 suits or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no claims pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits)) or, and to the best knowledge of Xxxxxxxxx, threatened against any Xxxxxxxxx Plan or against the assets of any Xxxxxxxxx Plan; (vii) no Benefit Xxxxxxxxx Plan has been the which is subject to Part 3 of an examination Subtitle B of Title I of ERISA or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level Section 412 of the expense Code has incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant"accumulated funding deficiency", as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultantsuch term is defined in Code Section 412(a), whether or not legally bindingwaived, to adopt, amend, modify or terminate nor does any Benefit Plan.
such Xxxxxxxxx Plan have any unfunded "current liability" (m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other paymentas defined in Code Section 412(1)(7)); (iiviii) accelerate the time of paymenteach "plan official", funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b412 of ERISA, of each Xxxxxxxxx Plan is bonded to the extent required by such Section 412; (ix) no proceeding has been initiated to terminate any Xxxxxxxxx Plan and no "reportable event", within the meanings of Section 4043(b) or 4063(a) of the Code; or (vi) require a “gross-up” or other payment ERISA, has occurred with respect to any “disqualified individual” Xxxxxxxxx Plan (other than those which may result from the transactions contemplated hereby); (x) no Xxxxxxxxx Plan is a "multiple employer plan", within the meaning of the Code or ERISA, or a "multiemployer plan", within the meaning of Section 280G(c3(37) of ERISA; (xi) Xxxxxxxxx has complied with the Codereporting and disclosure requirements of ERISA and with applicable federal and state securities laws; (xii) there are no leased employees (as defined in Code Section 414(n)) that must be taken into account under any Xxxxxxxxx Plan pursuant to Code Section 414(n)(3); (xiii) no retiree benefits are payable pursuant to any "employee welfare benefit plan" (as defined in ERISA Section 3(1)) and there are no agreements in effect that would obligate Xxxxxxxxx to pay any such benefits in the future; (xiv) each Xxxxxxxxx Plan which is a "group health plan" (as defined in Code Section 5000(b)) complies and in each case has complied in all respects with the applicable requirements of ERISA Sections 601 and 602, Code Section 162(k) (through December 31, 1988) and Code Section 4980(B) (commencing on January 1, 1989); and (xv) each employee welfare benefit plan (as defined in (xiii) preceding, including any such plan which covers former employees of Xxxxxxxxx), may be amended or terminated by Xxxxxxxxx or by Xxxxxxx'x on or at any time after the Closing Date.
(nc) All Options With respect to each Xxxxxxxxx Plan which is subject to the minimum funding requirements of Code Section 412 and, if applicable, Title IV of ERISA: (i) as of the Closing Date, Xxxxxxxxx shall have made all required premium payments to the PBGC; (ii) the termination of or withdrawal from any such Xxxxxxxxx Plan, on or prior to the Closing Date, has not and will not subject Xxxxxxxxx or Xxxxxxx'x to any liability (other than routine administrative expenses) to the PBGC or to any other person or party; (iii) no amendment of such Xxxxxxxxx Plan has occurred which required or could require Xxxxxxxxx or Xxxxxxx'x to provide security to such Xxxxxxxxx Plan under Code Section 401(a)(29); and (iv) the termination of, or withdrawal from, any such Xxxxxxxxx Plan during any part of the 60 calendar month period ending on the Closing Date has not and will not subject Xxxxxxxxx or Xxxxxxx'x to any liability to the PBGC or to any other person.
(d) The market value of the net assets of each Xxxxxxxxx Plan which is subject to Title IV of ERISA is at least equal to the actuarial present value of the benefit liabilities (as defined in ERISA Section 4041) under the Xxxxxxxxx Plan, based on actuarial methods, tables and assumptions satisfactory to Xxxxxxx'x, which present value is not less than the projected benefit obligation for such Xxxxxxxxx Plan under FAS 87; all required contributions to each such Xxxxxxxxx Plan have been duly authorized made and the contribution for the period from the first day of the current plan year to the Closing Date for each such Xxxxxxxxx Plan shall have been made or accrued by the Company Board Xxxxxxxxx Plan sponsor in compliance accordance with the terms current actuarial report prepared with respect to the Xxxxxxxxx Plan by the Xxxxxxxxx Plan's actuary; and no events have occurred or are expected to occur with respect to any such Xxxxxxxxx Plan that would cause a material change in the market value of the Stock Option net assets (other than market fluctuations) or in the present value of the benefit liabilities thereunder.
(e) Xxxxxxxxx has made or will have made all required employer contributions, including any salary deferrals and matching contributions, to each Xxxxxxxxx Plan which is a defined contribution plan (as defined in ERISA Section 3(34)) for all prior plan years and for the current plan year through the Closing Date.
(f) Between the date of this Agreement and the Closing Date, no Xxxxxxxxx Plan will (i) be terminated, (ii) be amended in any manner which would directly or indirectly increase the benefits accrued or to be accrued by any participant thereunder, or (iii) be amended in any manner which would materially increase the cost of maintaining such Xxxxxxxxx Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aSchedule 3.13(a) of the Seller Disclosure Schedules contains Schedule sets forth a true correct and complete list list, as of each “the date hereof, of all employee benefit plan” plans (as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreementall bonus, programstock option, plan or arrangementstock purchase, includingrestricted stock plans, without limitation, each bonus planincentive, deferred compensation plancompensation, retiree medical or life insurance, retirement, supplemental retirement, incentive compensation or retention planpension, equity purchase planmedical, equity option plandental, equity appreciation right planvision, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreementemployment, change in control agreementcontrol, golden parachute agreement or arrangement termination, severance, retention, fringe benefit and other similar benefit plans, programsschemes, agreementsfunds, programs or arrangements that are maintained, contributed to or understandingssponsored by any member of the Seller Group or the Acquired Company in which any of the Transferred Employees participate (excluding any plan, in each such case, that is program or xxxxx://xxx.xxx.xxx/Archives/xxxxx/data/1002638/000100263816000084/exhibit21.htm 35/134 arrangement sponsored, maintained, administered or contributed to maintained by a Governmental Entity) (the Company or with respect to which the Company has or may have any Liability (each, a “Seller Benefit PlanPlans”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required Sellers have made available to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning Purchaser a correct and complete copy of Section 3(2) of ERISA, whether or not subject to ERISA, or any each plan intended to qualify under Section 401(a) of the Codedocument and current summary plan description for each Seller Benefit Plan.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Seller Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance in all material respects with all applicable Laws (including Laws. The requirements of Part 6 of Subtitle B of Title I of ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law any similar state law (collectively, “COBRA”)) have been met in all material respects with respect to each Seller Benefit Plan that is a welfare plan subject to COBRA.
(c) With respect to each Seller Benefit Plan, (i) no such plan is a Pension Plan which is a “multiemployer plan,” as defined in Section 3(37) of ERISA; and (ii) except as set forth in Schedule 3.13(c) of the Seller Disclosure Schedule, no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA.
(d) Other than as required under COBRA or as set forth in Schedule 3.13(d) of the Seller Disclosure Schedule, no Seller Benefit Plan provides post-termination posttermination or retiree health welfare benefits to any individual for any reason, and neither no member of the Seller Group or the Acquired Company nor or any of its their respective ERISA Affiliates has any Liability to provide post-termination posttermination or retiree health welfare benefits to any individual or ever represented, promised promised, or contracted to any individual that such individual would be provided with post-termination posttermination or retiree health welfare benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(je) There Except as expressly contemplated by this Agreement or as set forth in Schedule 3.13(e) of the Seller Disclosure Schedule, the execution and delivery of this Agreement and the other Transaction Agreements and the consummation of the Contemplated Transactions will not (either alone or in combination with another event, including a subsequent termination of employment or service)
(i) result in any payment from any member of the Seller Group or the Acquired Company becoming due, or increase the amount of any compensation due, to any Transferred Employee, (ii) increase any benefits otherwise payable under any Seller Benefit Plan, (iii) result in the acceleration of the time of payment or vesting or funding of any compensation or benefits from any member of the Seller Group or the Acquired Company to any Transferred Employee or (iv) result in any payment that would be characterized as an “excess parachute payment” under Section 280G(b)(1) of the Code. Without limiting the generality of the foregoing, except as set forth in Schedule 3.13(e) of the Seller Disclosure Schedule, no amount payable to any Transferred Employee (whether in cash or property or as a result of accelerated vesting) as a result of the execution of this Agreement or the consummation of the Contemplated Transactions (either alone or together with any other event) under any Seller Benefit Plan or other compensation arrangement would be nondeductible under Section 280G of the Code. Neither any member of the Seller Group nor the Acquired Company has any obligation to compensate or otherwise “gross up” any Transferred Employee for any Taxes incurred by such Transferred Employee as a result of Sections 409A or 4999 of the Code.
(f) To the Knowledge of the Sellers, there is no pending or, to the Company’s Knowledge, threatened Action material Legal Proceeding relating to a Seller Benefit Plan (other than routine claims for benefits), and no Seller Benefit Plan has within the last year prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental AuthorityEntity.
(kg) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the The aggregate amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option PlanAccrued PTO for all Transferred Employees does not exceed $7,000,000. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.xxxxx://xxx.xxx.xxx/Archives/xxxxx/data/1002638/000100263816000084/exhibit21.htm 36/134
Appears in 1 contract
Samples: Bill of Sale
Employee Benefit Matters. (a) Except as set forth on the "Benefit Plans Schedule" attached ---------------------- hereto, with respect to current or former employees of the Division, neither the Seller nor any of its Subsidiaries maintains or contributes to or has any actual or potential liability with respect to any (i) deferred compensation or bonus or retirement plans or arrangements, (ii) qualified or nonqualified defined contribution or defined benefit plans or arrangements which are employee pension benefit plans (as defined in Section 3.20(a3(2) of the Disclosure Schedules contains Employee Retirement Income Security Act of 1974, as amended ("ERISA")), or (iii) employee welfare benefit ----- plans, (as defined in Section 3(1) of ERISA), stock option or stock purchase plans, or material fringe benefit plans or programs whether in writing or oral and whether or not terminated. Neither the Seller nor any of its Subsidiaries has ever contributed to any multiemployer pension plan (as defined in Section 3(37) of ERISA), and neither the Seller nor any of its Subsidiaries has ever maintained or contributed to any defined benefit plan (as defined in Section 3(35) of ERISA). The plans, arrangements, programs and agreements referred to the preceding two sentences are referred to collectively as the "Plans." ----- Neither the Seller nor any of its Subsidiaries maintains or contributes to any Plan which provides health, accident or life insurance benefits to former employees of the Division, their spouses or dependents, other than in accordance with Section 4980B of the Code ("COBRA"). -----
(b) The Plans (and related trusts and insurance contracts) set forth on the Benefit Plans Schedule comply in form and in operation with the ---------------------- requirements of applicable laws and regulations, including ERISA and the Code and the nondiscrimination rules thereof. All contributions, premiums or payments which are due on or before the Closing Date under each Plan have been paid. Each Plan which is intended to be qualified under section 401(a) of the Code (i) has been amended on a timely basis in compliance with the Code and (ii) has received from the Internal Revenue Service a favorable determination letter which considers the terms of such Plan as amended.
(c) All required reports and descriptions (including Form 5500 Annual Reports, Summary Annual Reports and Summary Plan Descriptions) with respect to the Plans set forth on the Benefit Plans Schedule have been properly and timely ---------------------- filed with the appropriate government agency and distributed to participants as required. The Seller and each of its Subsidiaries have complied with the requirements of COBRA.
(d) With respect to each Plan set forth on the Benefit Plans Schedule, ---------------------- (i) there have been no prohibited transactions as defined in Section 406 of ERISA or Section 4975 of the Code, (ii) no fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of such Plans, and (iii) no actions, investigations, suits or claims with respect to the assets thereof (other than routine claims for benefits) are pending or threatened, and neither the Seller nor any Stockholder has knowledge of any facts which would give rise to or could reasonably be expected to give rise to any such actions, suits or claims.
(e) With respect to each of the Plans listed on the Benefit Plans ------------- Schedule, the Stockholders have furnished to the Purchaser true and complete list -------- copies of (i) the plan documents, summary plan descriptions and summaries of material modifications and other material employee communications, (ii) the Form 5500 Annual Report (including all schedules and other attachments for the most recent three years), (iii) all related trust agreements, insurance contracts or other funding agreements which implement such plans and (iv) all contracts relating to each “employee benefit such plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, service provider agreements, arrangements insurance contracts, investment management agreements and recordkeeping agreements.
(f) The Seller and each of its Subsidiaries has not incurred and has no reason to expect that it will incur, any liability to the Pension Benefit Guaranty Corporation (other than routine premium payments ) or understandings, in each such case, that is sponsored, maintained, administered otherwise under Title IV of ERISA (including any withdrawal liability) or contributed to by under the Company or Code with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company Seller or any member of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
"controlled group" (f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Code Section 280G(b414) maintains or ever has maintained or to which any of the Code; them contributes, ever has contributed, or (vi) require a “gross-up” or other payment ever has been required to any “disqualified individual” within the meaning of Section 280G(c) of the Codecontribute.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a4.17(a) of the Company Disclosure Schedules Schedule contains a true true, correct and complete list of each material employee benefit plan (including any “employee benefit plan” as that term is defined in Section 3(3) of ERISA ERISA) and any stock purchase, stock option, restricted stock and stock units, share appreciation rights, severance, employment, consulting, change-in-control, fringe benefit, bonus, incentive, deferred compensation, vacation, group or individual health, dental, medical, life insurance, survivor benefits, and any employment, deferred compensation, severance, consulting or similar contract or agreement (including any offer letter other than an offer letter terminable at-will, without the incurrence of any Liability other than COBRA) and all other material employee benefit plans, Contracts, agreements, programs, policies or other arrangements relating to employee benefits or entitlements, whether oral or written, whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered maintained or contributed to by an Acquired Company for the Company benefit of any current or former employees and any individual independent contractors of the Acquired Companies or with respect to which the Company has or may Acquired Companies have any Liability (each, a “Company Benefit Plan” and, collectively, the “Company Benefit Plans”). The Prior to the date hereof, the Company has never adoptedprovided to Parent and its agents and representatives, entered intoas applicable, maintainedcopies of (i) each Company Benefit Plan, sponsoredincluding schedules and financial statements attached thereto, contributed to, been required to contribute to, or had any Liability (ii) the most recent annual report (Form 5500) filed with the IRS with respect toto each such applicable Company Benefit Plan, (iii) each trust agreement and any “employee pension benefit other material written agreement (including any material amendment) relating to each such Company Benefit Plan, (iv) the most recent summary plan description for each such Company Benefit Plan for which a summary plan description is required, together with any summary of material modifications thereto, (v) the most recent determination or opinion letter issued by the IRS with respect to any such Company Benefit Plan intended to be qualified under Section 401(a) of the Code and (vi) for any oral plan” within , agreement, program or arrangement, a written summary thereof.
(b) Each Company Benefit Plan, in all material respects, has been established and administered in accordance with its terms, and is in compliance with the meaning of Section 3(2) applicable requirements of ERISA, whether the Code and other applicable Laws. There are no audits, inquiries or not subject proceedings pending or, to ERISAthe Knowledge of the Company, threatened by the IRS or any plan other Governmental Authority with respect to any Company Benefit Plan (other than routine claims for benefits in the normal course). Each Company Benefit Plan intended to qualify be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter issued by the IRS and, to the Knowledge of the Company, no circumstances exist which could reasonably result in loss of such qualification under Section 401(a) of the Code.
(bc) With respect to each Benefit Plan, the No Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writingis, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability obligations with respect to, either to (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an any “employee pension benefit plan (plan,” as defined in Section 3(2) of ERISA) , that is or was subject to Title IV of ERISA or Code Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to (ii) any “employee welfare benefit multiemployer plan” (as defined in ERISA Section 3(13(37)).
(d) of ERISA or No Company Benefit Plan is a “multiple employer welfare arrangement” (as defined described in ERISA Section 3(40) of ERISA).
(dor a “multiple employer plan” as described in ERISA Section 210(a) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(eor Section 413(c) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(fe) With respect to each No Company Benefit PlanPlan provides, all payments due from nor has the Company have either been timely made in accordance with nor any Acquired Company undertaken to provide, for medical or welfare benefits (through insurance or otherwise), or for the terms continuation of such Benefit Plan and applicable Law benefits or are properly recorded coverage, in any case, after retirement or other termination of employment, except as liabilities on the books of the Company and, to the extent may be required by GAAP, adequate reserves are reflected on the financial statements Part 6 of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion Subtitle B of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, Title I of ERISA and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable similar state or foreign Law (collectively, “COBRA”), no .
(f) Each Company Benefit Plan provides post-termination that constitutes a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been documented, operated and maintained in accordance with a good faith, reasonable interpretation of Section 409A of the Code and its purpose, as determined under applicable guidance of the Department of Treasury and Internal Revenue Service, with respect to amounts deferred (within the meaning of Section 409A of the Code).
(g) No Company Benefit Plan exists that, as a result of the execution of this Agreement or retiree health the transactions contemplated by this Agreement (whether alone or in connection with any subsequent event(s)), could reasonably be expected to result in (i) the increase, acceleration, cancelation of a Debt or provision of any payments, benefits or other rights to any individual employee, officer, director or consultant, whether or not any such payment, right or benefit would constitute a “parachute payment” within the meaning of Section 280G of the Code or (ii) an obligation to fund or otherwise set aside assets to secure to any extent any of the obligations under the Company Benefit Plan.
(h) Each Company Benefit Plan may be amended or terminated, subject to such constraints as may be imposed by applicable Law, without incurring any Liability therefor or additional payment outside of the ordinary course in connection therewith (other than routine administrative costs), except for any reasonclaims incurred prior to such amendment or termination.
(i) The Company has made all material contributions and premium payments required to have been paid through the date hereof with respect to each Company Benefit Plan or, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable(if any) not paid, each Benefit Plan has have been operated reflected as a Liability in compliance in all material respects accordance with COBRA and other similar applicable LawGAAP applied on a consistent basis with the Company’s historical financial practices.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, written interpretation of or announcement (whether oral or written) by the an Acquired Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Company Benefit Plan that which would materially increase the annual expense of maintaining such plan Company Benefit Plan above the level of the expense incurred in respect thereof for the most recently completed recent fiscal year with respect ended prior to any director, officer, employee, independent contractor or consultant, as applicablethe date hereof.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Merger Agreement (Shire PLC)
Employee Benefit Matters. (a) Section 3.20(a) Schedule 3.17 of the Disclosure Schedules contains a true and complete list of each lists all “employee benefit planplans,” as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974, as amended (whether or not such plan is subject to “ERISA”) and each all other benefit agreementretirement, programstock, plan or arrangementstock option, includinginsurance, without limitationwelfare benefit, each bonus plansavings, deferred compensation plan, supplemental retirementcompensation, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance programcompensation, paid time off policyoff, employment agreementseverance pay, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement salary continuation and other similar fringe benefit arrangements, plans, programscontracts, agreementspolicies, arrangements or understandings, in each such case, that is sponsored, practices maintained, administered contributed to, or required to be contributed to by the Company or any ERISA Affiliate (as hereinafter defined) or with respect to which the Company has or any ERISA Affiliate may have any Liability liability (each, a the “Benefit PlanPlans”). For purposes of this Section 3.17, the term “ERISA Affiliate” means any person, entity, trade or business (whether or not incorporated) that is treated as a single employer with the Company under Section 414 of the Code.
(b) As applicable, with respect to each of the Benefit Plans, true and complete copies of (i) all plan documents (including all amendments and modifications thereof) and in the case of an unwritten Benefit Plan, a written description thereof, and in either case all related agreements including the trust agreement and amendments thereto, insurance contracts, and investment management agreements; (ii) the last three filed Form 5500 series and all schedules thereto, as applicable; (iii) the current summary plan descriptions and all material modifications thereto; (iv) the three most recent trustee reports; and (v) copies of any private letter rulings, requests and applications for determination and determination letters issued with respect to the Benefit Plans, and filings or applications under the Employee Plans Compliance Resolution System (as set forth in Rev. Proc. 2006-27, and any successor thereto) or the Voluntary Fiduciary Correction or Delinquent Filer Voluntary Compliance programs with respect to the Benefit Plans, in each case made or issued within the past five years, have been delivered to Buyer.
(c) The Company and each ERISA Affiliate are in compliance in all material respects with the provisions of ERISA and the Code applicable to the Benefit Plans (including, without limitation, with respect to each Benefit Plan that is a group health plan within the meaning of section 5000(b)(1) of the Code, the notice and continuation coverage requirements of section 4980B of the Code and the regulations thereunder and the applicable provisions of the Health Insurance Portability and Accountability Act of 1996 and the regulations issued thereunder). Each Benefit Plan has never adopted, entered into, been maintained, sponsoredoperated and administered in compliance in all material respects with its terms and any related documents or agreements and the applicable provisions of ERISA and the Code.
(d) No Benefit Plan is (or at any time has been) subject to Title IV of ERISA and no Benefit Plan is (or at any time has been) a “multiemployer plan” as defined in Section 3(37) of ERISA, contributed to, been required to contribute to, or had and neither the Company nor any Liability ERISA Affiliate has incurred any withdrawal liability with respect to, to any multiemployer plan.
(e) All Benefit Plans which are “employee pension benefit planplans” within the meaning of Section 3(2) of ERISAERISA and which are intended to meet the qualification requirements of Section 401(a) of the Code (each a “Pension Plan”) have received a determination letter from the IRS or can rely on an opinion letter regarding its tax-qualified status, whether and have at all times met and currently meet the qualification requirements of Section 401(a) of the Code, and each related trust has been and currently is exempt from taxation under Section 501(a) of the Code.
(f) There are no pending audits or not investigations by any governmental agency involving the Benefit Plans, and no threatened or pending claims (except for individual claims for benefits payable in the normal operation of the Benefit Plans), suits or proceedings involving any Benefit Plan, any fiduciary thereof or service provider thereto, nor to the knowledge of the Company is there any reasonable basis for any such claim, suit or proceeding.
(g) Any insurance premium under any insurance policy related to a Benefit Plan for any period up to and including the Closing Date has been paid, or accrued and booked on or before the Closing Date, and, with respect to any such insurance policy or premium payment obligation, neither the Company nor any ERISA Affiliate is subject to a retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability.
(h) Neither the Benefit Plans, any trusts created thereunder, the Company, any ERISA Affiliate, nor any employee of the foregoing, nor, to the best of the Company’s knowledge, any trustee, administrator or other fiduciary thereof, has engaged in a “prohibited transaction” (as such term is defined in section 4975 of the Code or section 406 of ERISA, ) or any plan intended other activity that could subject any thereof to qualify any tax or penalty (including without limitation, the taxes or penalties on prohibited transactions imposed by Code section 4975) or any sanctions imposed under Title I of ERISA.
(i) No Benefit Plan provides benefits, including, without limitation, death or medical benefits, beyond termination of service or retirement other than (i) coverage mandated by law or (ii) death or retirement benefits under a Benefit Plan qualified under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) . Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, made a written or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant oral representation to any “current or former employee welfare benefit plan” as defined in Section 3(1) promising or guaranteeing any employer paid continuation of ERISA medical, dental, life or a “multiple employer welfare arrangement” (as defined in Section 3(40) disability coverage for any period of ERISA)time beyond retirement or termination of employment.
(dj) Each Benefit Plan has been establishedNo payment which is or may be made by, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred from or with respect to any Benefit Plan that has subjected Plan, to any employee, former employee, director or could reasonably be expected to subject agent of the Company or any of its ERISA Affiliates orAffiliate, either alone or in conjunction with respect to any period on other payment, event or after the Closing Dateoccurrence, Parent will or any of its Affiliates, to a penalty could properly be characterized as an “excess parachute payment” under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D section 280G of the Code (or Sections 6652any corresponding provision of state, 4975 local or 4980H foreign Tax law).
(k) To the extent that any Benefit Plan constitutes a “non-qualified deferred compensation plan” within the meaning of Section 409A of the Code, such Benefit Plan has been operated in good faith compliance with Section 409A of the Code.
(fl) With respect to each Benefit Plan, all payments due from No awards (and no agreement or promise by the Company to make awards) under any Benefit Plan that provides for the granting of equity, equity-based rights, equity derivatives or options to purchase equity (“Equity Plans”) have either been backdated awards or awards granted with an effective grant date that is other than the date on which the committee or other administrator of such Equity Plans having authority thereunder to make such awards, (a) has taken all necessary corporate action to complete such awards (unless such committee or other administrator has specified a future grant date on the date it so acts and such action has been (or will be) completed prior to such future grant date), and (b) has timely made communicated all of the terms of the awards to the recipients in accordance with the terms of such Benefit Plan Company’s customary human resource practices and applicable Law or are properly recorded as liabilities on accounting standards. In addition, no awards made under the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan Equity Plans have been timely paid (or will be) altered in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition manner that would subject result in or have the Company effect of failing to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection comply with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Planforegoing sentence.
(m) Neither The Company and each ERISA Affiliate have properly classified for all purposes (including, without limitation, eligibility to participate in any Benefit Plan and federal tax withholding) all individuals providing services to the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone Company or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, such ERISA Affiliate as an employee, leased employee, consultant or independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Codecontractor.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a4.19(a) of the Disclosure Schedules contains a true and complete list of each “employee pension, benefit, retirement, compensation, profit-sharing, deferred compensation, incentive, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, fringe-benefit and other similar agreement, plan” as that term is defined , policy, program or arrangement, in Section 3(3) of ERISA (each case whether or not such plan reduced to writing and whether funded or unfunded, which is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been or required to contribute tobe contributed to by Scepter or under which Scepter has any liability or contingent liability, or had for the benefit of any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISAEmployee, or any plan intended to qualify under spouse or dependent of an Employee, other than Statutory Plans (as listed on Section 401(a4.19(a) of the CodeDisclosure Schedules, each, an “Employee Plan” and, collectively, the “Employee Plans”).
(b) With respect to each Benefit Employee Plan, the Company Scepter has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Employee Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Employee Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, now in effect and investment management or required investment advisory agreements related to a Benefit Plan which are in the future as a result possession or control of the transactions contemplated by this Agreement or otherwiseScepter; and (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits descriptions and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Employee Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, Except as such term is defined set forth in Sections 3(37) or 4001(a)(3Section 4.19(c) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”)Disclosure Schedules, no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reasonEmployee, and neither other than as required by the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever representedEmployment Standards Act, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law2000 (Ontario).
(jd) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kExcept as set forth in Section 4.19(d) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any directorDisclosure Schedules, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any none of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): Employee Plans provide for (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other paymentpayment to any Employee; (ii) accelerate acceleration of the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individualEmployee; or (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase in the amount of benefit payable under to any Employee or result in any other material obligation pursuant to any Benefit Employee Plan; (v) result , in “excess parachute payments” within each case triggered by the meaning entering into of this Agreement or completion of the transactions contemplated by this Agreement. Except as set forth in Section 280G(b4.19(d) of the Code; Disclosure Schedules, there are no material improvements, increases or (vi) require a “gross-up” or other payment changes provided to any “disqualified individual” within the meaning of Section 280G(c) of benefits provided under the CodeEmployee Plans.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aSchedule 3.18(a) of the Disclosure Schedules contains a true and complete list of each lists all “employee benefit planplans,” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each all other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention planKiwiSaver, equity purchase plansuperannuation, equity option planpension, equity appreciation right planprofit sharing, bonus, stock, restricted stock, stock option, stock purchase, equity-based, profits interest, phantom equity planequity, vacation policy or planemployment, severance pay planservice, disability planretainer, death benefit plancafeteria, cafeteria plancompensation, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreementconsulting, change in control agreementcontrol, golden parachute agreement or arrangement welfare, health (including medical, dental and other similar vision), life, disability, group insurance, savings, deferred compensation, incentive compensation, severance, salary continuation, retention, indemnification and fringe benefit and perquisite (including but not limited to benefits relating to holiday and leave entitlements, automobiles, clubs, child care, parenting, sabbatical, and tuition reimbursement) agreements, arrangements, plans, programs, agreementsContracts, arrangements policies, or understandings, in each such case, that is sponsored, practices maintained, administered contributed to, or required to be contributed to by Seller or any Affiliate for the Company benefit of any current or former employee, officer, director, member, partner or independent contractor of Seller or with respect to which the Company has Seller or any Affiliate may have any Liability liability, whether contingent or otherwise (each, a the “Benefit PlanPlans”). The Company has never adoptedIn the case of each employee Benefit Plan, entered intoSchedule 3.18(a) discloses whether such Plan is (i) unfunded, maintained, sponsored, contributed to, been required to contribute to(ii) funded through a welfare benefit fund, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2other funding mechanism or (iii) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Codeinsured.
(b) With As applicable, with respect to each Benefit Plan, the Company Seller has delivered or made available to Parent accurate, current Buyer true and complete copies of each of the following: (i) where all plan documents (including all amendments and modifications thereof) and in the case of an unwritten Benefit Plan has been reduced to writingPlan, the plan document together with all amendments; a written description thereof, (ii) where the Benefit Plan has not been reduced to writing, a written current summary plan description and each summary of all material plan terms; modifications thereto, (iii) where applicablethe most recent determination, copies of any insurance policies and contractsadvisory or opinion letter, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptionsall funding and administrative arrangement documents, summaries of material modificationsincluding trust agreements, summaries of benefits insurance contracts, custodial agreements, investment manager agreements and coverageservice agreements, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material noticesall communications, letters records, notices and filings received from or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating sent to the Benefit Planinternal revenue service.
(c) Neither Seller and each Affiliate is in compliance with the Company nor provisions of all Laws applicable to the Benefit Plans. All employee contributions to the Benefit Plans and to any ERISA Affiliate health savings accounts have been made in accordance with applicable requirements. Each Benefit Plan has ever been maintained, contributed to, had an obligation to contribute to, operated and administered in compliance with its terms and any related documents or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) agreements and the applicable provisions of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA)Laws.
(d) Each No Benefit Plan provides for or continues medical or health benefits, or life insurance or other welfare benefits (through insurance or otherwise) for any Person or any dependent or beneficiary of any Person beyond termination of service or retirement other than coverage mandated by Law, and neither Seller nor any Affiliate has been establishedmade a written or oral promise, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code)or any communication that could reasonably be expected to promise, to any Person to provide any such benefits.
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required byThe Seller’s execution of, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any performance of the transactions contemplated by this Agreement will not (either alone or upon the occurrence of any additional or subsequent events): ) (i) entitle constitute an event under any current Benefit Plan or former directorrelated agreement, officer, employee, independent contractor trust or consultant loan that will or may result in any payment (whether of the Company to severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits, or other obligation to fund benefits with respect to any other payment; Person (provided that termination of any qualified retirement plan as agreed hereunder will require vesting of benefits under such Benefit Plan) or (ii) accelerate result in the time of payment, funding triggering or vesting, imposition or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit restrictions or restrict limitations on the right of the Company Seller, Seller or any Affiliate to merge, amend or terminate any Benefit Plan; Plan (iv) increase the amount payable under or result in any other material obligation pursuant adverse consequence for so doing).
(f) There is no pending or, to the knowledge of Seller and/or Parent, threatened litigation by or on behalf of any Benefit Plan; , any employee or beneficiary covered under any Benefit Plan, any Authority with respect to a Benefit Plan, or otherwise involving any Benefit Plan (v) result in “excess parachute payments” within other than routine claims for benefits). No Benefit Plan is under audit or investigation by any Governmental Authority and, to the meaning knowledge of Section 280G(b) of the Code; Seller, no such audit or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Codeinvestigation is threatened.
(ng) Each of the Benefit Plans can be terminated at any time in the sole discretion of the plan sponsor, without any additional contribution to such Benefit Plan or the payment of any additional compensation or amount or acceleration of any benefits (other than accelerated vesting with respect to tax-qualified retirement plans, which shall not require any additional contribution to be made). No termination, discontinuance, load or other similar fee or expense is payable or shall be assessed in connection with the discontinuance of contributions to, and/or the amendment or termination of, any of the Benefit Plans.
(h) All Options contributions (including all employer contributions and employee salary reduction contributions) and premium payments which are or have been duly authorized due have been paid to or with respect to each benefit Plan within the time required by the Company Board law. All required or discretionary (in compliance accordance with the terms historical practices) payments, premiums, contributions, reimbursements, or accruals for all periods ending prior to or as of the Stock Option Plan. No Options Final Closing Date shall have been retroactively granted by made or properly accrued on the Company Board, nor Closing Statement or will be properly accrued on the books and records of Seller and each Affiliate as of the Final Closing Date. None of the Benefit Plans has any unfunded liabilities which are not reflected on the exercise price Closing Statement or the books and records of any such Option been determined retroactivelySeller and each Affiliate.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aSchedule 4.16(a) of the Disclosure Schedules contains a true and complete list of sets forth, separately by jurisdiction, each “employee benefit plan” (as that term is defined in Section 3(3) of ERISA (ERISA, whether or not such plan is subject to ERISA) ), and each other benefit, retirement, employment, individual consulting, compensation, incentive, bonus, stock option, restricted stock, stock appreciation right, phantom equity, change in control, severance, vacation, paid time off, welfare and fringe-benefit, and other employee benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is program sponsored, maintained, administered contributed or required to be contributed to by Seller or any of its Affiliates for the Company benefit of any Personnel or with respect former employees, officers, directors, or individual consultants (each, a “Business Person”) of the Business or pursuant to which the Company Seller or any of its Affiliates has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2Schedule 4.16(a) of ERISA, whether or not subject to ERISA, separately sets forth each Benefit Plan that is maintained by TriNet HR Corporation or any plan intended of its subsidiaries or Affiliates pursuant to qualify under Section 401(a) of the CodePEO Agreements.
(b) With respect to each Benefit Plan, the Company Seller has made available provided to Parent accurate, current Buyer a true and complete copies of each of the following: copy of, as applicable, (i) where the Benefit Plan has been reduced to writing, a current copy of the plan document together along with all amendments; any amendments and any related trust agreement or other funding instrument (and a summary of the material terms of any unwritten Benefit Plan), (ii) where the Benefit Plan has not been reduced to writing, most recent summary plan description and a written summary of all any material plan terms; modifications to the terms and provisions thereof, (iii) where applicable, copies of the most recent determination or opinion letter issued by the Internal Revenue Service for any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result Benefit Plan intended to be qualified under Section 401(a) of the transactions contemplated by this Agreement or otherwise; Code, (iv) copies of any summary plan descriptionsthe most recent current actuarial report, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of the two (2) most recent Forms 5500 and attached schedules, and (vi) all material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other non-routine filings made with any Governmental Authority relating to the Benefit PlanEntity.
(c) Each Benefit Plan and related trust has been operated, maintained, and administered in all material respects in compliance with its terms and all applicable Laws (including ERISA and the Code). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and the plan and the trust related thereto are exempt from federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that could reasonably be expected to cause the loss of such qualification. With respect to any Benefit Plan, no event has occurred or is reasonably expected to occur that has resulted in or would subject Seller to a Tax under Section 4971 of the Code or the Assets to an Encumbrance under Section 430(k) of the Code.
(d) Neither the Company Seller nor any of its ERISA Affiliate Affiliates currently or within the past six (6) years has ever sponsored, maintained, contributed to, had an obligation or been obligated to contribute to, or incurred had any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an to any “employee pension benefit plan plan” (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to Code, including any “employee welfare benefit multiemployer plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(403(37) of ERISA).
. Neither Seller nor any of its ERISA Affiliates has: (di) Each Benefit Plan has been established, administered and maintained materially withdrawn from any pension plan under circumstances resulting (or expected to result) in accordance with its terms and Liability; or (ii) engaged in compliance with all applicable Laws (including ERISA and the Code)any transaction which would give rise to a Liability under Section 4069 or Section 4212(c) of ERISA.
(e) Nothing has occurred There are no pending or, to the Knowledge of Seller, threatened Proceedings with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or assets of any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of plan fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits)) which could result in any material Liability to Buyer. All contributions, and no premiums or benefits required to have been made in respect of or for the benefit of any Business Person under any Benefit Plan has have been made by the subject of an examination required due date. Seller does not owe any deferred or audit by a Governmental Authority other compensation, expense reimbursement or any other payment whatsoever to any Business Person other than pursuant to the subject of an application Phantom Stock Plan and those certain bonuses to be paid at or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authorityfollowing the Closing to select Personnel as described in Schedule 4.16(e) (the “Transaction Bonuses”).
(kf) There Each Benefit Plan that constitutes in any part a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder and there is no amendment to, announcement by the Company Contract to which Seller or any of its Affiliates relating to, is a party or change in employee participation or coverage under, by which it is bound to compensate any Benefit Plan that would increase the annual expense of maintaining such plan above the level Business Person for additional Taxes paid pursuant to Section 409A of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicableCode.
(lg) Neither the Company nor No Benefit Plan provides, or reflects or represents any of its Affiliates has any commitment Liability to provide, post-employment life insurance, health or obligation or has made any representations other welfare benefits to any directorBusiness Person (or beneficiary thereof), officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Planexcept as may be required by COBRA at the individual’s sole expense.
(mh) Neither Other than Seller’s Phantom Stock Plan, and the Transaction Bonuses, neither the execution and delivery of this Agreement Agreement, nor any the consummation of the transactions contemplated by this Agreement will hereby (either alone or upon together with the occurrence of any additional or subsequent events): events or the passage of time) will (i) entitle result in any current payment becoming due to any Business Person, or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, vesting or funding or vestingof, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to mergebenefits under, amend or terminate any Benefit Plan; .
(ivi) increase Neither the amount payable under execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or together with the occurrence of any additional or subsequent events or the passage of time) will or may result in the payment of any other material obligation pursuant to any Benefit Plan; (v) result in amount that may be deemed an “excess parachute paymentspayment” within the meaning of under Section 280G(b) 280G of the Code; . There is no Contract to which Seller or (vi) require any of its Affiliates is a “gross-up” party or other payment by which it is bound to compensate any “disqualified individual” within the meaning of Business Person for excise Taxes paid pursuant to Section 280G(c) 4999 of the Code.
(nj) All Options With respect to each Benefit Plan that is maintained outside the United States substantially for Business Persons who are situated outside the United States (the “Foreign Plans”): (i) each Foreign Plan has been operated and maintained in compliance in all material respects with its terms and applicable Law, (ii) all payments (including premiums due) and all employer and employee contributions required to have been duly authorized by collected in respect of each Foreign Plan have been made or collected when due, or if applicable, accrued on the Company Board balance sheet of Seller and its Affiliates in compliance accordance with normal accounting practices in the terms applicable jurisdiction in all material respects, (iii) each Foreign Plan required to be registered has been registered and maintained in good standing with applicable regulatory authorities, and (iv) the fair market value of the Stock Option assets of each funded Foreign Plan is sufficient to satisfy the accrued benefit obligations, as of the Closing Date, with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aExhibit 5.8(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “lists all employee pension benefit plan” plans within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under ERISA and all employee welfare benefit plans within the meaning of Section 401(a3(1) of ERISA presently maintained by the CodeSeller for employees of the Business or to which the Seller contributes or is required to contribute for the benefit of any of the employees of the Business (the "ERISA Plans") and all bonus, commission and other similar programs maintained by Seller for employees of the Business (the "Other Arrangements"). True, correct and complete copies of all such ERISA Plans and Other Arrangements, together with related trusts, insurance contracts, summary plan descriptions, annual reports and Form 5500 filings for the past three (3) years, have been delivered to Purchaser.
(b) Except as set forth on Exhibit 5.8(b), the Seller does not now, and did not in the past five (5) years, sponsor, maintain or contribute to any employee pension benefit plan, within the meaning of Section 3(2) of ERISA relating to the Business. With respect to each Benefit Planthe Business, the Company Seller is not required to contribute, and has made available never been required to Parent accuratecontribute, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (vmulti-employer plan within the meaning of Section 3(37)(A) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit PlanERISA.
(c) Neither Each ERISA Plan covering employees of the Company nor any Business has been operated and administered in all material respects in accordance with all applicable laws, including, without limitation, ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) and the Internal Revenue Code. Each ERISA Plan that is a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3group health plan within the meaning of Section 601(1) of ERISA or (iiand Section 4980(B) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or is in material compliance with the continuation of coverage requirements of Section 302 or 601 of ERISA and Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(14980(B) of the Code. There are no pending claims, or, to the Seller's knowledge, threatened claims by or on behalf of any ERISA Plan, by any employee or a “multiple employer welfare arrangement” beneficiary covered under such ERISA Plan or by any government or otherwise involving such ERISA Plan or any of its fiduciaries (as defined in Section 3(40) of ERISAother than for routine claims for benefits).
(d) Each Benefit Plan has been establishedExcept as required by this Agreement, administered the ERISA Plans and maintained materially in accordance Other Arrangements, Seller is not bound to provide, and does not provide, benefits, including, without limitation, death, health or medical benefits (whether or not insured) with its terms and in compliance respect to current or former employees of the Business employed by Purchaser following the Closing beyond their retirement or other termination of service with all Seller other than:
(i) coverage mandated by applicable Laws law;
(including ERISA and ii) deferred compensation benefits accrued as liabilities; or
(iii) benefits, the Code)full cost of which is borne by the current or former employee or his beneficiary.
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period Except as provided on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”Exhibit 5.8(e), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions transaction contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): hereby will:
(i) entitle any current or former director, officer, employee, independent contractor or consultant employee of the Company Business employed by Purchaser after the Closing, to severance pay pay, unemployment compensation or any similar or other payment; or
(ii) accelerate the time of payment, funding payment or vesting, or increase the amount of compensation (including stock-based compensation) or benefits due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Codeemployee.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Asset Purchase Agreement (Healthplan Services Corp)
Employee Benefit Matters. (a) Section 3.20(a3.14(a) of the Agere Disclosure Schedules contains Letter sets forth a true complete and complete accurate list of each “employee benefit plan” as that term is defined in Section 3(3) of all U.S. Agere Employee Plans. Neither Agere nor any ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, Affiliate has any plan or arrangementcommitment to establish any new Agere Employee Plan, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation to modify any Agere Employee Plan (except to the extent required by law or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandingsto conform any such Agere Employee Plan to the requirements of any applicable law, in each such case, that is sponsored, maintained, administered or contributed case as previously disclosed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute toLSI in writing, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISAas required by this Agreement), or to adopt or enter into any plan intended to qualify under Section 401(a) of the CodeAgere Employee Plan.
(b) With respect to each Benefit Agere Employee Plan, the Company Agere has made available to Parent accurate, current LSI complete and complete accurate copies of each of the following: (i) where the Benefit such Agere Employee Plan has been reduced to writing, the plan document (or a written summary of any unwritten plan) together with all amendments; , (ii) where in the Benefit Plan has not been reduced case of any plan for which Forms 5500 are required to writingbe filed, a written summary of all material plan terms; the three most recent annual reports (Form 5500) with schedules attached, (iii) where applicable, copies in the case of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result plan that is intended to be qualified under Section 401(a) of the transactions contemplated by this Agreement Code, the most recent determination, opinion, notification or otherwise; advisory letter from the IRS, and correspondence to or from the IRS or the DOL with respect to such letter (iv) copies of any each trust agreement, group annuity contract, administration and similar material agreements, investment management or investment advisory agreements, (v) the most recent summary plan descriptionsdescriptions and employee handbook, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any or other similar written material employee communications relating to Table of Contents employee benefits matters, (vi) all personnel, payroll and employment manuals and policies, (vii) the most recent annual and periodic financial statements and other annual accounting of assets for each Agere Employee Plan that is funded, (viii) all material correspondence to or a description of from any oral communications) governmental agency relating to any Benefit Plan; Agere Employee Plan within the past two (2) years and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit three (3) most recent plan years’ discrimination tests for each Agere Employee Plan.
(c) Each Agere Employee Plan has been established, maintained and administered in all material respects in accordance with all applicable Legal Requirements, including if applicable, ERISA and the Code, and in accordance with its terms, and each of Agere, Agere’s Subsidiaries and their respective ERISA Affiliates have in all material respects met their obligations with respect to each Agere Employee Plan and have timely made (or timely will make) all required contributions thereto.
(d) Section 3.14(d) of the Agere Disclosure Letter contains a complete and accurate list of each Agere Employee Benefit Plan that has assets which include securities issued by Agere, any of Agere’s Subsidiaries or any of their respective ERISA Affiliates.
(e) All Agere Employee Plans that are intended to be qualified under Section 401(a) of the Code, and all trusts that are intended to be qualified under Section 501(a) of the Code (each, a “Agere Qualified Plan”), have received determination, opinion or advisory letters from the Internal Revenue Service to the effect that such Agere Employee Plans are qualified and the plans and trusts related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or Agere has remaining a period of time under applicable U.S. Department of the Treasury regulations or Internal Revenue Service pronouncements in which to apply for such a letter and to make any amendments necessary to obtain a favorable determination as to the qualified status of each such Agere Qualified Plan. No such determination, opinion or advisory letter has been revoked and, to the knowledge of Agere, revocation has not been threatened, and no such Agere Employee Plan has been amended or operated since the date of its most recent determination letter or application therefor in any respect, and no act or omission has occurred, that would reasonably be expected to adversely affect its qualification or materially increase its cost. There has been no termination, partial termination or discontinuance of contributions to any Agere Qualified Plan that resulted or may reasonably be expected to result in material liability to Agere. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Agere Employee Plan.
(f) Neither the Company Agere, any of Agere’s Subsidiaries nor any of their respective ERISA Affiliate Affiliates has ever in the preceding six (6) years maintained, participated in or contributed to, had an obligation to (or been obligated to contribute to), or incurred any Liability can reasonably expect to have future material liability with respect to, either to (i) a “multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan ” (as defined in Section 3(24001(a)(3) of ERISA), (ii) a “multiple employer plan” as defined in ERISA or the Code, or (iii) a “funded welfare plan” within the meaning of Section 419 of the Code. No Agere Employee Plan is funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. No Agere Employee Plan provides health benefits that are not fully insured through an insurance contract. Table of Contents
(g) The Pension Plans set forth in Section 3.14(g) of the Agere Disclosure Letter are the only Pension Plans that Agere or any Agere ERISA Affiliate has maintained, sponsored, participated or contributed to in the preceding six (6) years, or currently maintains, sponsors, participates in or contributes to, or can reasonably expect to have future material liability with respect to, that is or was subject to Title IV of ERISA or Section 412 of the Code (each, an “Agere Pension Plan”). As of the Effective Time: (i) no legal or administrative action has been taken by the Pension Benefit Guaranty Corporation (the “PBGC”) to terminate or to appoint a trustee to administer any Agere Pension Plan; (ii) no liability to the PBGC under Title IV of ERISA has been incurred by Agere or an Agere ERISA Affiliate that has not been satisfied in full; (iii) no Agere Pension Plan has a reportable event within the meaning of Section 430 4043 of ERISA for which the 30 day notice requirement has not been waived by the PBGC has occurred within the past six years or is reasonably expected to occur with respect to any Agere Employee Plan; and (iv) no Agere Pension Plan has incurred any event described in Section 4041, 4062 or 4063 of ERISA. No complete or partial termination of any Agere Employee Plan subject to Title IV of ERISA has occurred or is expected to occur and no proceedings have been instituted and, to the knowledge of Agere, no condition exists and no event has occurred that is reasonably likely to constitute grounds under Title IV of ERISA to terminate or appoint a trustee to administer any Agere Pension Plan. Each Agere Pension Plan has been maintained in compliance with the minimum funding standards of ERISA and the Code where applicable and no Agere Pension Plan subject to §412 or 418B of the Code or Section §302 of ERISA has incurred any accumulated funding deficiency within the meaning of §412 or Section 418B of the Code or §302 of ERISA, respectively, or has applied for or obtained a waiver from the IRS of any minimum funding requirement or an extension of any amortization period under §412 of the Code or §303 or 304 of ERISA. The Company Except for payments of premiums to the PBGC, which have been paid in full, Agere has not participated incurred any liability (including any indirect liability through an agreement with any other party and any material contingent or material secondary liability) to the PBGC in connection with any union-sponsored multiemployer welfare benefit fund maintained pursuant to Agere Pension Plan covering any “employee welfare benefit plan” as defined in Section 3(1active, retired or former employees or directors of Agere, including any liability under §4069 or 4212(c) of ERISA or any penalty imposed under §4071 of ERISA, or ceased operations at any facility or withdrawn from any such Agere Pension Plan in a manner which could subject it to liability under §4062, 4063 or 4064 of ERISA, or knows of any facts or circumstances that might give rise to any liability of Agere to the PBGC under Title IV of ERISA that could reasonably be anticipated to result in any claims being made against Agere by the PBGC (“multiple employer welfare arrangement” (as defined in PBGC Claims”). Section 3(403.14(g) of the Agere Disclosure Letter sets forth the approximate liability for any Agere Pension Plan accumulated funding deficiency within the meaning of §412 or 418B of the Code or §302 of ERISA).
(dh) Each Benefit Plan has been establishedOther than as required under Section 601 et seq. of ERISA or equivalent state law, administered none of the Agere Employee Plans promises or provides health or other welfare benefits (excluding normal claims for benefits under Agere’s group life insurance, accidental death and maintained materially in accordance with its terms dismemberment insurance and in compliance with all applicable Laws (including ERISA disability plans and the Code)policies) or coverage to any person following retirement or other termination of employment.
(ei) Nothing has occurred with respect There is no action, suit, proceeding, claim, arbitration, audit or investigation pending or, to any Benefit Plan that has subjected the knowledge of Agere, threatened or could reasonably be expected to subject the Company or any of its ERISA Affiliates oranticipated, with respect to any period Agere Employee Plan or the assets of any Agere Employee Benefit Plan, other than claims for benefits in the ordinary course. No Agere Employee Plan is or within the last Table of Contents three calendar years has been the subject of, or has received notice that it is the subject of, examination by a government agency or a participant in a government sponsored amnesty, voluntary compliance or similar program.
(j) To the knowledge of Agere, each individual who has received compensation for the performance of services on behalf of Agere, any of Agere’s Subsidiaries or after any of their respective ERISA Affiliates has been properly classified as an employee or independent contractor in accordance with applicable Legal Requirement.
(k) Each Agere Employee Plan maintained or covering employees outside the Closing DateUnited States (the “Agere Non-U.S. Employee Plans”), Parent and the books and records thereof, is in material compliance with all applicable Legal Requirements of each applicable jurisdiction. No such Agere Non-U.S. Employee Plan has unfunded liabilities, that as of the Effective Time, will not be offset by insurance or fully accrued. Section 3.13(k) of the Agere Disclosure Letter contains a complete and accurate list of each country in which Agere or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, Subsidiaries or to tax or penalty under Chapter 43 of Subtitle D affiliates has operations as of the Code or Sections 6652, 4975 or 4980H Agere Balance Sheet Date and the approximate number of employees in each such country as of the CodeAgere Balance Sheet Date.
(fl) With Section 3.14(l) of the Agere Disclosure Letter sets forth a complete and accurate list of (i) all employment agreements with employees of Agere or any of its Subsidiaries, other than customary offer letters and other similar employment agreements entered into in the ordinary course of business; and (ii) all operative severance agreements, programs and policies of Agere or any of its Subsidiaries with or relating to its Section 16 officers, excluding programs and policies required to be maintained by Legal Requirement.
(m) All contributions required to be made with respect to each Benefit Plan, all payments due from any Agere Employee Plan on or prior to the Company Effective Time have either been or will be timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAPAgere Balance Sheet.
(gn) All reports and disclosures relating to the Benefit Plans required to be filed with The negotiation or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISAwill not, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): in combination with another event, (i) entitle any current or former employee, director, officer, employee, independent contractor consultant or consultant officer of the Company Agere or any Subsidiary of Agere to severance pay pay, or any other payment; payment from Agere or any of its Subsidiaries, or pursuant to any Agere Employee Plan, (ii) accelerate the time of paymentdistribution, funding payment or vesting, a lapse of repurchase rights or increase the amount of compensation (including stock-based compensation) or benefits due to any such individual; employee, director or officer, (iii) limit result in the forgiveness of indebtedness, or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase trigger an obligation to fund benefits. Section 3.13(n) of the amount payable under Agere Disclosure Letter contains a complete and accurate list of each Agere “disqualified individual” (as defined in Code Section 280G and the regulations thereunder). No payment or result in benefit which will or may be made by Agere or its ERISA Affiliates with respect to any current or former employee or any other material obligation pursuant “disqualified individual” is reasonably expected to any Benefit Plan; (v) result in be characterized as a “excess parachute paymentspayment,” within the meaning of Section 280G(b280G(b)(2) of the Code; . There is no contract, agreement, plan or (vi) require arrangement to which Agere or any ERISA Affiliates is a “gross-up” party or by which it is bound to compensate any current or former employee or other payment disqualified individual for excise taxes paid pursuant to any Section 4999 of the Code. Table of Contents
(o) Each material nonqualified deferred compensation plan (as defined in Section 409A(d)(1) of the Code) maintained or sponsored by Agere has been operated since January 1, 2005 in good faith compliance with Section 409A of the Code and IRS Notice 2005-1. No material nonqualified deferred compensation plan has been “disqualified individualmaterially modified” (within the meaning of IRS Notice 2005-1) at any time after October 3, 2004.
(p) No stock option, stock appreciation right or service provider warrant of Agere (i) has an exercise price that has been or may be less than the fair market value of the underlying equity as of the date such option or right was granted or (ii) has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or right.
(q) Neither Agere nor any ERISA Affiliate has or is reasonably likely to have any liability or obligations to Lucent or AT&T, with respect to any compensation or benefits with respect to employees or former employees of Lucent or AT&T who are not employees or former employees of Agere pursuant to an agreement with Lucent or AT&T.
(r) There is no Contract to which Agere or any of its Subsidiaries is a party, including the provisions of this Agreement, covering any employee, consultant or director of Agere or any of its Subsidiaries, which, individually or collectively, reasonably could be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code or that would give rise to a penalty under Section 280G(c) 409A of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Merger Agreement (Lsi Logic Corp)
Employee Benefit Matters. Except as set forth in Section 3.20 in the Company Disclosure Letter,
(a) Section 3.20(a) of the Company Disclosure Schedules Letter contains a true and complete list for the pay period ending on February 20, 2015, of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by the Company or with respect to any of its Subsidiaries for the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Company or any of its Subsidiaries or any spouse or dependent of such individual, or under which the Company or any of its Subsidiaries or any ERISA Affiliate has or may have any Liability Liability, or with respect to which Parent or any of its Affiliates would reasonably be expected to have any Liability, contingent or otherwise (as listed on Section 3.20(a) of the Company Disclosure Letter, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of separately identified in Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a3.20(a) of the CodeCompany Disclosure Letter each Benefit Plan that contains a change in control provision.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the followingfollowing for the calendar years 2013 and 2014: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar material written communications (or a description of any material oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Form 5500, with schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Neither Each Benefit Plan and any related trust (other than any multiemployer plan within the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or each a “multiple employer welfare arrangement” (as defined in Section 3(40Multiemployer Plan”)) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance in all material respects with all applicable Laws (including ERISA ERISA, the Code and any applicable local Laws). Each Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code (a “Qualified Benefit Plan”) is so qualified and has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) Nothing , and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. To Company’s Knowledge, nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its Subsidiaries or any ERISA Affiliates Affiliate or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f) With respect . All benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and in all material respects with all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(gd) All reports and disclosures Neither the Company nor any of its Subsidiaries nor any ERISA Affiliate has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Plans required Guaranty Corporation; (iii) withdrawn from any Benefit Plan; or (iv) engaged in any transaction which would give rise to be filed with liability under Section 4069 or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerSection 4212(c) of ERISA.
(he) There exists With respect to each Benefit Plan (i) no condition that would such plan is a Multiemployer Plan; (ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; and (iv) no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA, and none of the assets of the Company or any of its Subsidiaries or any ERISA Affiliate is, or may reasonably be expected to become, the subject of any Liability lien arising under the terms Section 302 of ERISA or Section 412(a) of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Code.
(f) Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company Company, any of the Company’s Subsidiaries or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Neither the Company nor any of its Subsidiaries has no any commitment or obligation and or has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(ig) Other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its Subsidiaries nor any ERISA Affiliates Affiliate has any Liability to provide post-termination or retiree health welfare benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health welfare benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jh) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the two years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(ki) There has been no amendment to, announcement by the Company or any of its Subsidiaries or any of their Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) . Neither the Company nor any of its Subsidiaries nor any of their Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement.
(j) Each Benefit Plan that is subject to Section 409A of the Code has been administered in material compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. Neither the Company nor any of its Subsidiaries has any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(k) Each individual who is classified by the Company or any of its Subsidiaries as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.
(ml) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company or any of its Subsidiaries to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
. The Company has made available to Parent true and complete copies of any Section 280G calculations prepared (nwhether or not final) All Options have been duly authorized by the Company Board with respect to any disqualified individual in compliance connection with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactivelytransactions.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a3.19(a) of the Disclosure Schedules contains a true and complete list as of the date hereof of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) ACFP Companies have no employees outside of the CodeUnited States.
(b) With respect to each Benefit Plan, the Company Seller has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, now in effect and investment management or required in the future as a result of the transactions contemplated by this Agreement or otherwiseinvestment advisory agreements; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, COBRA communications, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service and any legal opinions issued thereafter with respect to such Benefit Plan’s continued qualification; (vi) in the case of any Benefit Plan for which a Form 5500 must be filed, a copy of the two (2) most recently filed Forms 5500, with all corresponding schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the two (2) most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other non-routine correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Neither Each Benefit Plan and any related trust (other than any multiemployer plan within the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or each a “multiple employer welfare arrangement” (as defined in Section 3(40Multiemployer Plan”)) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance compliance in all material respects with its terms and in compliance with all applicable Laws (including ERISA ERISA, the Code and any applicable local Laws). Each Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code (a “Qualified Benefit Plan”) received a favorable and current determination letter from the Internal Revenue Service with respect to the most recent five (5) year filing cycle, or with respect to a prototype or volume submitter plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan or volume submitter plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) Nothing , and nothing has occurred that would reasonably be expected to materially adversely affect the qualified status of any Qualified Benefit Plan. To the Knowledge of Seller, nothing has occurred with respect to any Benefit Plan that has subjected or could would reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(fd) Neither any ACFP Company nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Guaranty Corporation; (iii) withdrawn from any Benefit Plan; (iv) engaged in any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA; (v) incurred Taxes under Section 4971 of the Code with respect to any Single Employer Plan; or (vi) participated in a multiple employer welfare arrangements (MEWA).
(e) With respect to each Benefit Plan, all payments due from : (i) no such plan is a Multiemployer Plan; (ii) no such plan is a “multiple employer plan” within the Company have either been timely made in accordance with the terms meaning of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books Section 413(c) of the Company and, Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no such plan or the plan of any ERISA Affiliate maintained or contributed to within the extent required by GAAP, adequate reserves are reflected on the financial statements last six (6) years is a “defined benefit plan” (as defined in Section 3(35) of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultantERISA, whether or not legally binding, subject to adopt, amend, modify ERISA) or terminate any Benefit Plan in connection with the consummation other plan subject to Sections 412 or 430 of the transactions contemplated by this Agreement Code or otherwiseSection 302, or Title IV of ERISA.
(if) Other than as required by Section under Sections 601 et. seq. to 608 of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the any ACFP Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jg) There is no pending or, to the CompanySeller’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefitsbenefits in the ordinary course), and no Benefit Plan has within the three (3) years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kh) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Each Benefit Plan that would increase the annual expense of maintaining such plan above the level is subject to Section 409A of the expense Code has in all material respects been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. No ACFP Company has any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred for pursuant to Section 409A of the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicableCode.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(mi) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): ), except as set forth on Section 3.19(i) of the Disclosure Schedules: (i) entitle any current or former director, officer, employee, independent contractor or consultant of the an ACFP Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or materially increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the an ACFP Company to merge, amend amend, or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (viv) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code. Prior to the Closing, Seller will make available to Buyer true and complete copies of any Section 280G calculations prepared (whether or not final) with respect to any disqualified individual in connection with the transactions contemplated by this Agreement.
(nj) All Options have been duly authorized by Section 3.19(j) of the Disclosure Schedules sets forth a list of the Company Board in compliance with Option Holders and the terms number of Company Options, including Out-of-Money Options, held by each Company Option Holders that are outstanding and unexercised as of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactivelydate hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (BurgerFi International, Inc.)
Employee Benefit Matters. (a) Section 3.20(aSchedule 4.23(a)(i) of the Disclosure Schedules contains a true and complete list of each “lists all employee benefit plan” plans (as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreementall bonus, programstock option, plan or arrangementstock purchase, includingprofit sharing, without limitationsavings, each bonus plandisability, incentive, deferred compensation plancompensation, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar employee benefit plans, programs, agreements, programs or arrangements or understandings, in each such case, that is (i) sponsored, maintained, administered maintained or contributed to by the Company or any Subsidiary or to which the Company or any Subsidiary is a party or (ii) with respect to which the Company or any Subsidiary has (or may have could have) any Liability (eachobligation or liability individually, a “Benefit "Plan”", and collectively, the "Plans"). The Except as set forth on Schedule 4.23(a)(ii), neither the Company nor any Subsidiary has never adoptedany agreement, entered intounderstanding, maintainedcommitment or obligation to create, sponsoredenter into or contribute to any additional employee benefit plan (other than a Plan), contributed toor to modify or amend any existing Plan. Except as set forth on Schedule 4.23(a)(iii), there has been required to contribute no amendment, interpretation or other announcement (written or oral) by the Company, any Subsidiary or any other Person relating to, or had change in participation or coverage under, any Liability Plan that, either alone or together with other such items or events, could materially increase the expense of maintaining such Plan (or the Plans taken as a whole) above the level of expense incurred with respect to, any “employee pension benefit plan” within thereto for the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of most recent fiscal year included in the CodeFinancial Statements.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current the Purchaser true and complete copies of each of the following: (i) where all plan documents, as in effect on the Benefit date hereof, (ii) the latest Internal Revenue Service determination letter, if applicable, (iii) the last filed Form 5500, if applicable, (iv) summary plan descriptions, if any, and all modifications thereto communicated to employees, (v) all coverage, nondiscrimination, top heavy and Code Section 415 tests performed with respect to such Plan for the last three (3) years, if applicable, and (vi) the most recent actuarial report, if any, prepared for such Plan.
(c) All Plans are (and at all times for which any applicable statute of limitations has not barred claims associated with such Plans) established, maintained, administered, operated and funded in compliance in all material respects with their terms and all requirements prescribed by applicable laws, statutes, orders, rules and regulations, including without limitation ERISA and the Code, and the Company and the Subsidiaries (and, to the knowledge of the Company, all other Persons, including without limitation, all fiduciaries) have properly performed all material obligations required to be performed by them under (or with respect to), and are not in any material respect in default under or in violation of, any of the Plans or any of the legal requirements applicable thereto, including without limitation any reporting, disclosure or notification obligations.
(d) None of the Company, any Subsidiary, or to the knowledge of the Company, any other Person has, with respect to any Plan, subject to ERISA, engaged in or been reduced a party to writingany "prohibited transaction", as such term is defined in Section 4975 of the plan document together Code or Section 406 of ERISA, which could result in the imposition of either a penalty assessed pursuant to Section 502(i) of ERISA or a Tax imposed by Section 4975 of the Code.
(e) There are no pending or, to the knowledge of the Company, threatened claims, lawsuits or arbitrations (other than routine claims for benefits), relating to any of the Plans, which have been asserted or instituted against the Company, any Plan or the assets of any trust for any Plan, nor, to the knowledge of the Company, is there a basis for any such claim, lawsuit or arbitration. No Plan is currently under investigation, audit or review, directly or indirectly, by any Governmental Authority, and, to the knowledge of the Company, no such action is contemplated or under consideration by any Governmental Authority. No Plan, which is subject to ERISA, is a "multiemployer plan" (as defined in Section 3(37) of ERISA) or, except as disclosed in Schedule 4.23(e), is subject to Section 412 of the Code or Section 302 or Title IV of ERISA (each such Plan, a "Title IV Plan").
(f) Neither the Company nor any Subsidiary has incurred any liability (that will not be satisfied prior to the Closing Date) under Title IV of ERISA. Solely with respect to the periods for which any applicable statute of limitations has not barred claims associated with such Plans, with respect to any Title IV Plan that the Company or any Subsidiary has ever sponsored, maintained or contributed (or been obligated to sponsor, maintain or contribute to): (i) the Company and each Subsidiary have made all amendmentscontributions that each of them has ever been required to make by operation of law or by contract to such Title IV Plan; (ii) where neither the Benefit Company nor any Subsidiary has withdrawn from such Title IV Plan has not been reduced to writing, during a written summary plan year in which it was a "substantial employer" (within the meaning of all material plan termsSection 4001(a)(2) of ERISA); (iii) where applicableneither the Company nor any Subsidiary has terminated such Title IV Plan, copies filed a notice of intent to terminate such Title IV Plan, or adopted any amendment to treat such Title IV Plan as terminated; (iv) neither the PBGC nor any other Person has instituted proceedings, or has notified the Company or any Subsidiary or such Title IV Plan that it intends to institute proceedings, to terminate (or to appoint a trustee to administer) such Title IV Plan nor, to the knowledge of the Company, is there a reasonable basis for the commencement of any insurance policies and contractssuch proceeding by the PBGC or any other Person; (v) no reportable event (as described in Section 4043 of ERISA) has occurred, administration agreements and similar agreements, now in effect or required in to the future knowledge of the Company is threatened or about to occur (including without limitation as a result of the transactions contemplated by this Agreement or otherwiseAgreement); (ivvi) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating all required premium payments to the Benefit Plan.
PBGC have been paid when due; (cvii) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability no amendment with respect to, either (i) a multiemployer plan, as such term to which security is defined in Sections 3(37) or 4001(a)(3) required under Section 307 of ERISA or Section 401(a)(29) of the Code has been made, or is reasonably expected by the Company or any Subsidiary to be made, to such Title IV Plan; (iiviii) an employee pension such Title IV Plan has been funded in accordance with sound actuarial assumptions and practices, which have been consistently applied; (ix) the most recent actuarial report prepared for such Title IV Plan fairly presents the financial condition and the results of operations for such Title IV Plan as of the date of such report; (x) the assets of such Title IV Plan do not exceed the "benefit plan (liabilities," as defined in Section 3(24001(a)(16) of ERISA, due under such Title IV Plan upon termination of such Title IV Plan by a material amount; (xi) no accumulated funding deficiency, whether or not waived, exists; (xii) no condition has occurred or exists that with the passage of time could result in an accumulated funding deficiency (as of the last day of the current plan year) (other than the payment of future minimum required contributions and other than with respect to the underfunded status of the Leach International Corporation Retirement Plan); and (xiii) none ox xxx Company, any Subsidiary or any other Person to which any of them is a successor or parent corporation (within the meaning of Section 4069(b) of ERISA) has engaged in a transaction that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject result in a liability to the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty Subsidiary under Section 502 4069 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan each Subsidiary have complied in connection all material respects with the consummation provisions of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act Part 6 of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any Subtitle B of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable LawTitle I of ERISA.
(jh) There Each Plan that is no pending or, intended to be qualified under Section 401(a) of the Company’s Knowledge, threatened Action relating to a Benefit Code is (and at all times for which any applicable statute of limitations has not barred claims associated with such Plans) so qualified and its related trust is (and at all times for which any applicable statute of limitations has not expired has been) exempt from taxation under Section 501(a) of the Code. Each such Plan (other than routine claims for benefits), and no Benefit Plan has been i) is the subject of an examination unrevoked favorable determination letter from the IRS with respect to such Plan's qualified status under the Code, as amended by the Tax Reform Act of 1986 and all subsequent legislation, including, without limitation, that legislation commonly referred to as "GUST" and "EGTRRA," or audit by (ii) has remaining a Governmental Authority period of time under the Code or applicable Treasury regulations or IRS pronouncements in which to request, and make any amendments necessary to obtain, such a letter from the subject IRS. To the knowledge of an application the Company, nothing has occurred or, with respect to actions taken or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement omitted by the Company or any Subsidiary, is reasonably expected to occur, that could adversely affect the qualification or exemption of any such Plan or its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year related trust.
(i) Except with respect to any directorthe Subsidiaries, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any is not, and during ten (10) years prior to the date hereof has not been, a member of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former directora controlled group of corporations, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b414(b) of the Code; , (ii) a group of trades or (vi) require a “gross-up” or other payment to any “disqualified individual” businesses under common control, within the meaning of Section 280G(c414(c) of the Code, (iii) an affiliated service group, within the meaning of Section 414(m) of the Code, or (iv) any other group of Persons treated as a single employer under Section 414(o) of the Code.
(nj) All Options have been duly authorized by Except as set forth on Schedule 4.23(j) (which disclosure includes the amount of unfunded liabilities as of the dates indicated thereon), no Plan that covers or benefits any current or former officer, employee, agent, director or independent contractor of the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price or any Subsidiary (or any dependent or beneficiary of any such Option individual) who performs (or performed) services for the Company or any Subsidiary outside the United States has unfunded liabilities, determined in accordance with GAAP, that have not been determined retroactivelyfully accrued on the Financial Statements or will not be fully offset by insurance.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a) of the Disclosure Schedules contains sets forth a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity or other equity, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by the Company for the benefit of any current or former employee, officer, manager, retiree, independent contractor or consultant of the Company, or any spouse or dependent of such individual, or under which the Company or any of its ERISA Affiliates has or may have any Liability, or with respect to which the Company has Buyer or may any of its Affiliates would reasonably be expected to have any Liability Liability, contingent or otherwise (as listed in Section 3.20(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has Sellers have made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Form 5500, with schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Neither Each Benefit Plan and related trust (other than any multiemployer plan within the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or each a “multiple employer welfare arrangement” (as defined in Section 3(40Multiemployer Plan”) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and and, to Sellers’ Knowledge, in compliance with all applicable Laws (including ERISA ERISA, the Code and any applicable local Laws). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a “Qualified Benefit Plan”) is so qualified and has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) , and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. Nothing has occurred with respect to any Benefit Plan that has subjected or could would reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f) With respect . All benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(gd) All reports and disclosures None of the Company or any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Plans Guaranty Corporation; (iii) withdrawn from any Benefit Plan; or (iv) engaged in any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA.
(e) With respect to each Benefit Plan (i) no such plan is a Multiemployer Plan, and (A) all contributions required to be filed with paid by the Company or furnished to a Governmental Authority or plan participants or beneficiaries any of its respective ERISA Affiliates have been prepared timely paid to the applicable Multiemployer Plan, (B) none of the Company or any of its ERISA Affiliates has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied, and (C) a complete withdrawal from all such Multiemployer Plans at the Effective Time would not result in accordance any material liability to the Company; (ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA, and none of the assets of the Company or any ERISA Affiliate is, or may reasonable be expected to become, the subject of any lien arising under Section 302 of ERISA or Section 412(a) of the Code; and (v) no “reportable event,” as defined in Section 4043 of ERISA, has occurred with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerrespect to any such plan.
(hf) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated terminated, or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to ParentBuyer, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no does not have a commitment or obligation and obligation, nor has not it made any representations to any employee, officer, directormanager, independent contractor contractor, or consultant, whether or not legally binding, to adopt, amend, modify modify, or terminate any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(ig) Other Except as set forth in Section 3.20(g) of the Disclosure Schedules and other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reason, and neither none of the Company nor or any of its ERISA Affiliates has any Liability to provide post-termination or retiree health welfare benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health welfare benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jh) There is no pending or, to the Company’s Sellers’ Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three (3) years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(ki) There has been no amendment to, announcement by Sellers, the Company or any of its their Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any directormanager, officer, employee, independent contractor or consultant, as applicable.
(l) Neither . None of Sellers, the Company Company, nor any of its their respective Affiliates has have any commitment or obligation or has made any representations to any directormanager, officer, employee, independent contractor contractor, or consultant, whether or not legally binding, to adopt, amend, modify modify, or terminate any Benefit Plan or any collective bargaining agreement.
(j) Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings, and proposed and final regulations) thereunder. The Company has no obligation to gross up, indemnify, or otherwise reimburse any individual for any excise taxes, interest, or penalties incurred pursuant to Section 409A of the Code.
(k) Each individual who is classified by the Company as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.
(ml) Neither Except as set forth in Section 3.20(l) of the Disclosure Schedules, neither the execution of this Agreement nor the consummation of any of the transactions contemplated by this Agreement will (either alone will, individually or upon the occurrence of any additional or subsequent events): collectively: (i) entitle any current or former directormanager, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Fat Brands, Inc)
Employee Benefit Matters. (a) Section 3.20(a4.20(a) of the Disclosure Schedules contains a true complete and complete accurate list of each material “employee benefit plan” as that term is defined in (within the meaning of Section 3(3) of ERISA (ERISA), retirement, employment, consulting, collective bargaining, compensation, incentive or deferred compensation, relocation, bonus, stock purchase, stock option, profit sharing, profits interest, pension, restricted stock, stock appreciation right, phantom equity or other equity or equity-based arrangement, change in control, termination, severance, vacation, paid time off, welfare, cafeteria, insurance, flex spending, tuition, medical, health, disability, sick leave, dependent care assistance, health savings, health reimbursement, accident, death, expense reimbursement and fringe-benefit agreement, plan, policy, program, or other arrangement, whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan ERISA or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandingsreduced to writing, in each effect and covering one or more Employees, former employees of the Company Group, current or former directors of the Company Group or the beneficiaries or dependents of any such casePersons, that and is or has been maintained, sponsored, maintainedcontributed to, administered or required to be contributed to by the Company Group, or with respect to under which the Company Group or any ERISA Affiliate has any present or may have future material liability (other than any Liability “multiemployer plan” as defined in Section 3(37) of ERISA, a “Multiemployer Plan”) (as listed on Section 4.20(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, Stockholders have provided to Buyer or its representatives copies of, to the Company has made available to Parent accurateextent applicable, current and complete copies of each of the following: (i) where documentation for such Benefit Plan, including all amendments thereto and all related trust documents (and descriptions of the Benefit Plan has been reduced to material terms of any such plan that is not in writing, the plan document together with all amendments; ) (ii) where the Benefit Plan has not been reduced most recent summary plan description required pursuant to writingSection 102 of ERISA, a written summary of all material plan terms; (iii) where applicablethe three most recent annual reports on Form 5500 filed with the Internal Revenue Service (and all schedules and financial statements attached thereto), copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies the most recent determination or opinion letter issued by the Internal Revenue Service with respect to each Benefit Plan, if applicable; (v) all discrimination tests for each Benefit Plan for the three most recent plan years if applicable; (vi) all material written agreements and contracts relating to each Benefit Plan, including administrative service agreements and group insurance contracts, (vii) if applicable, any material communications relating to any amendments, terminations, decrease in benefits, acceleration of payments or vesting schedules or other events which would result in any summary plan descriptionsliability to the Company Group or any ERISA Affiliate, summaries of and (viii) all material modifications, summaries of benefits and coverage, employee handbooks and correspondence to or from any other similar written communications (or a description of any oral communications) Governmental Authority relating to any Benefit Plan; and (v) copies Plan other than routine correspondence in the normal course of material notices, letters or other correspondence from the Internal Revenue Service, Department operations of Labor, Department of Health and Human Services, or other Governmental Authority relating to the such Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan and related trust complies with and has been established, maintained, operated and administered and maintained materially in all material respects accordance with its terms and in compliance with terms, as well as all applicable Laws (including ERISA and/or the Code and applicable local Laws). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code).
Code (ea “Qualified Benefit Plan”) Nothing has occurred received a favorable determination letter from the Internal Revenue Service, or with respect to any a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal Income Taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to Stockholders’ Knowledge, nothing has subjected or could occurred that would reasonably be expected to subject cause the Company revocation of such determination letter from the Internal Revenue Service or any the unavailability of its ERISA Affiliates or, with respect to any period reliance on or after such opinion letter from the Closing Date, Parent or any of its Affiliates, to a penalty under Internal Revenue Service. Except as set forth in Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D 4.20(c) of the Code or Sections 6652Disclosure Schedules, 4975 or 4980H all benefits, contributions and premiums required by and due under the terms of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company Plan or applicable Law have either been timely made paid in accordance with the terms of such Benefit Plan Plan, the terms of all applicable Laws and applicable Law or are properly recorded as liabilities on the books of the Company andGAAP. With respect to any Benefit Plan, to the extent required by GAAPStockholders’ Knowledge, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required no event has occurred or is reasonably expected to be paid for each insurance policy funding all occur that has resulted in or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company Group to any Liability a Tax under the terms Section 4971 of the Code or the assets of the Company Group to a lien under Section 430(k) of the Code.
(d) No Benefit Plans Plan: (i) is subject to the minimum funding standards of Section 302 of ERISA or applicable Law relating thereto other than Section 412 of the Code; or (ii) is a Multiemployer Plan. Except as would not have a Material Adverse Effect, no Selling Party nor the Company: (i) has withdrawn from any payment pension plan under circumstances resulting (or expected to result) in a liability to the Pension Benefit Guaranty Corporation; or (ii) has engaged in any transaction which would give rise to a liability of benefits in the normal course Company Group or Buyer under Section 4069 or Section 4212(c) of plan operationERISA. Each With respect to each Benefit Plan can be amended, terminated or otherwise discontinued after that is a “welfare plan” within the Closing in accordance with its terms, without material liabilities to Parentmeaning of ERISA Section 3(1), the Company Group does not have any liability or any obligation to provide medical or death benefits with respect to current or former employees of the Company Group beyond their Affiliates termination of employment (other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated coverage mandated by this Agreement or otherwiseLaw).
(ie) Other than Except as required by Section 601 et. seq. of ERISA, under Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-benefits or coverage in the nature of health, life or disability insurance following retirement or other termination or retiree health of employment (other than death benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-when termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Lawoccurs upon death).
(jf) There Except as set forth in Section 4.20(f) of the Disclosure Schedules: (i) there is no pending or, to the Company’s Stockholders’ Knowledge, threatened Action Proceeding relating to a Benefit Plan any trustee or fiduciaries thereof or any of the assets of any trust of any Benefit Plan; and (other than routine claims for benefits), and ii) no Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority Authority. No lien has been imposed under the Code or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by ERISA with respect to any Governmental Authority.
(k) Benefit Plan. There has been no amendment tonon-exempt “prohibited transaction” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, announcement by the Company or any and not otherwise exempt under Section 408 of its Affiliates relating toERISA, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year fiduciary breach with respect to any director, officer, employee, independent contractor Benefit Plan for which the Company Group would be liable (either directly or consultant, as applicablethrough indemnification).
(lg) Neither Except as set forth in Section 4.20(g) of the Company nor any Disclosure Schedules, or as would not have a Material Adverse Effect, no Benefit Plan exists that would, as a result of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any consummation of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent eventsin connection with another event): (i) entitle result in the payment to any current or former directorEmployee, officer, employee, independent contractor director or consultant of the Company to severance pay any money or any other paymentproperty; (ii) accelerate the time vesting of payment, or provide any additional rights or benefits (including funding or vesting, or increase the amount of compensation (including stock-based compensationor benefits through a trust or otherwise) due to any such individualEmployee, director or consultant, except as a result of any partial plan termination resulting from this Agreement; or (iii) limit or restrict the right ability of the Company Buyer or its Affiliates to merge, amend or terminate any Benefit Plan; , in each case, as a result of the execution of this Agreement. Neither the execution and delivery of this Agreement or the Transaction Documents, nor the performance of the transactions contemplated hereby or thereby, will (iveither alone or in conjunction with any other event, such as termination of employment) increase the amount payable under or (i) result in any material payment to, any officer, director or employee of the Company Group who is a “disqualified individual” (as such term is defined in proposed Treasury Regulation 1.280G-1) under any employment, severance or termination agreement, other material obligation pursuant to any Benefit Plan; (v) compensation arrangement or benefit plan currently in effect as a result in of the transaction contemplated by this Agreement that could be an “excess parachute paymentspayment” within the meaning of Section 280G(b(as such term is defined under 280G(b)(1) of the Code); and (ii) no such person is entitled to receive any additional payment from the Company for the interest or additional Tax set forth under Section 409A(a)(1)(B) or in the event that the excise tax under 4999(a) of the Code is imposed on such person.
(vii) require Each Benefit Plan which is a “gross-upnonqualified deferred compensation plan” subject to Section 409A of the Code has been established, operated and maintained in all respects in compliance with Section 409A of the Code; and (ii) no member of the Company Group has an obligation to indemnify, or other payment otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to any “disqualified individual” within the meaning of Section 280G(c) 409A of the Code.
(ni) All Options To the extent applicable and required, all Benefit Plans have been duly authorized fully funded, all social security, pension and similar contributions and payments required to be made by the Company Board in compliance with the terms applicable member of the Stock Option Plan. No Options Company Group with respect to any Benefit Plan have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactivelyfully paid.
Appears in 1 contract
Samples: Stock Purchase Agreement (EnerSys)
Employee Benefit Matters. (a) Section 3.20(a4.11(a) of the Umpqua Disclosure Schedules contains a true and complete list of each “Schedule lists all employee benefit plan” plans (as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, and all bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement or other benefit plans, programs or arrangements, and all retention, bonus, employment, termination, severance plans, programs or arrangements or other material compensatory contracts or agreements to or with respect to which Umpqua or any Subsidiary or any trade or business of Umpqua or any of its Subsidiaries, whether or not incorporated, all of which together with Umpqua would be deemed a "single employer" within the meaning of Section 4001 of ERISA (a "Umpqua ERISA Affiliate"), is a party or has any current or future obligation or that are maintained, contributed to or sponsored by Umpqua or any of its Subsidiaries or any of their respective Umpqua ERISA Affiliates for the benefit of any current or former employee, officer, director or independent contractor of Umpqua or any of its Subsidiaries or any of their respective Umpqua ERISA Affiliates, in each case to the extent material (all such plans, programs, arrangements, contracts or agreements, collectively, the "Umpqua Benefit Plans").
(b) Umpqua has heretofore made available (it being understood that documents available via the SEC's XXXXX system shall be deemed to have been made available for purposes of this representation) to Sterling true and complete copies of each of the Umpqua Benefit Plans and the following related documents: (i) all summary plan descriptions, amendments, modifications or material supplements to any Umpqua Benefit Plan, (ii) the annual report (Form 5500), if any, filed with the IRS for the last two plan years, (iii) the most recently received IRS determination letter, if any, relating to a Umpqua Benefit Plan, and (iv) the most recently prepared actuarial report for each Umpqua Benefit Plan (if applicable) for each of the last two years.
(c) Each Umpqua Benefit Plan has been established, operated and administered in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code.
(d) With respect to each Umpqua Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code (the "Umpqua Qualified Plans") and the related trust, IRS has issued a favorable determination letter, which letter has not been revoked (nor has revocation been threatened), and, to the knowledge of Umpqua, there are no existing circumstances and no events have occurred that could adversely affect the qualified status of any Umpqua Qualified Plan or the related trust. No trust funding any Umpqua Benefit Plan is intended to meet the requirements of Section 501(c)(9) of the Code.
(be) With respect Except as would not reasonably be likely to result in material liability to Umpqua or its Subsidiaries, each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Umpqua Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, that is a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer "nonqualified deferred compensation plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan " (as defined in Section 3(2409A(d)(1) of ERISAthe Code) and any award thereunder, in each case that is or was subject to Title IV Section 409A of ERISA or the Code, has (i) since January 1, 2005, been maintained and operated, in all material respects, in good faith compliance with Section 412 or Section 430 409A of the Code or Section 302 or Section 303 of ERISA. The Company has not participated and IRS Notice 2005-1 and (ii) since January 1, 2009, been, in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined all material respects, in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered documentary and maintained materially in accordance with its terms and in operational compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H 409A of the Code.
(f) With respect None of Umpqua and its Subsidiaries nor any of their respective Umpqua ERISA Affiliates has, at any time during the last six years, maintained, sponsored, contributed to each Benefit or been obligated to contribute to any plan that is (i) a Title IV Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit (ii) a Multiemployer Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by(iii) a Multiple Employer Plan, and none of Umpqua and its Subsidiaries nor any of their respective Umpqua ERISA Affiliates has incurred any material liability to a Title IV Plan or a Multiemployer Plan or Multiple Employer Plan as a result of a complete or partial withdrawal (as those terms are defined in accordance with, GAAPPart I of Subtitle E of Title IV of ERISA) from a Multiemployer Plan or Multiple Employer Plan.
(g) All reports and disclosures relating Neither Umpqua nor any of its Subsidiaries sponsors, has sponsored or has any material obligation with respect to the Benefit Plans required to be filed with any employee benefit plan that provides for any post-employment or furnished to a Governmental Authority post-retirement health or plan participants medical or life insurance benefits for retired, former or current employees or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerdependents thereof, except as required by Section 4980B of the Code.
(h) There exists no condition that would subject the Company All material contributions required to be made to any Liability Umpqua Benefit Plan under applicable Law or by any plan document or other contractual undertaking, and all material premiums due or payable with respect to insurance policies funding any Umpqua Benefit Plan, for any period through the terms date hereof, have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the books and records of Umpqua.
(i) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Umpqua, there are no pending or, to the knowledge of Umpqua, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to Umpqua's knowledge, no such claim or lawsuit is threatened, against the Umpqua Benefit Plans, any fiduciaries thereof with respect to their duties to the Umpqua Benefit Plans or applicable Law relating thereto other than the assets of any payment of benefits the trusts under any of the Umpqua Benefit Plans which could reasonably be expected to result in the normal course any liability of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company Umpqua or any of their Affiliates other than ordinary administrative expenses typically incurred its Subsidiaries to the PBGC, the IRS, the Department of Labor, any Multiemployer Plan, a Multiple Employer Plan, any participant in a termination Umpqua Benefit Plan, or any other party.
(j) None of Umpqua and its Subsidiaries has engaged in any "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject Umpqua or any of its Subsidiaries or any person that Umpqua or any of its Subsidiaries has an obligation to indemnify in respect thereof to any material tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA.
(k) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event. The Company has no commitment ) result in, cause the vesting, exercisability or obligation and has not made delivery of, or increase in the amount or value of, any representations payment, right or other benefit to any employee, officer, directordirector or other service provider of Umpqua or any of its Subsidiaries, independent contractor or consultant, whether result in any limitation on the right of Umpqua or not legally binding, any of its Subsidiaries to adopt, amend, modify merge, terminate or terminate receive a reversion of assets from any Umpqua Benefit Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by Umpqua or any of its Subsidiaries in connection with the consummation transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an "excess parachute payment" within the meaning of Section 280G of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 etCode. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company Neither Umpqua nor any of its ERISA Affiliates has any Liability to provide post-termination Subsidiaries maintains or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating contributes to a Benefit Plan (other than routine claims for benefits)rabbi trust or similar funding vehicle, and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone not cause or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay require Umpqua or any other payment; (ii) accelerate of its affiliates to establish or make any contribution to a rabbi trust or similar funding vehicle. No Umpqua Benefit Plan provides for the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” up or other payment to any “disqualified individual” within the meaning reimbursement of Taxes under Section 280G(c) 4999 or 409A of the Code.
(nl) All Options have been duly authorized There are no pending or, to Umpqua's knowledge, threatened material labor grievances or material unfair labor practice claims or charges against Umpqua or any of its Subsidiaries, or any strikes or other material labor disputes against Umpqua or any of its Subsidiaries. Neither Umpqua nor any of its Subsidiaries are party to or bound by any collective bargaining or similar agreement with any labor organization applicable to employees of Umpqua or any of its Subsidiaries and, to the Company Board in compliance with the terms knowledge of the Stock Option Plan. No Options have been retroactively granted Umpqua, there are no organizing efforts by the Company Board, nor has the exercise price any union or similar group seeking to represent any employees of Umpqua or any such Option been determined retroactivelyof its Subsidiaries.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aSchedule 5.19(a) of the Disclosure Schedules contains includes a true true, correct and complete list of each of the following (collectively referred to as the “Plans” and individually referred to as a “Plan”) that is sponsored, maintained or contributed to or by the Company or for which the Company could have any liability (actual or contingent), or has, within the past six years, been sponsored or maintained or contributed to by the Company for which the Company could have any liability (actual or contingent):
(i) each “employee benefit plan,” as that such term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974, as amended (whether or “ERISA”), (including employee benefit plans, such as foreign plans, which are not such plan is subject to the provisions of ERISA); and
(ii) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right rights plan, restricted equity plan, phantom equity plan, vacation equity based compensation arrangement, policy or planprogram, collective bargaining agreement, bonus plan or arrangement, incentive award plan or arrangement, vacation policy, severance pay plan, disability planpolicy or agreement, death benefit plan, cafeteria plandeferred compensation agreement or arrangement, employee assistance programloan, paid time off policyexecutive compensation or supplemental income arrangement, employment change in control or transaction bonus plan or agreement, consulting agreement, retention incentive employment agreement and each other employee benefit plan, agreement, noncompetition agreement, confidentiality agreement, change arrangement or program which is not described in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”Section 5.19(a)(i). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect Seller has furnished to each Benefit PlanBuyer true, the Company has made available to Parent accurate, current correct and complete copies of each of the followingPlans set forth on Schedule 5.19(a), and related trusts and services agreements, if applicable, including all amendments thereto. Seller has also furnished to Buyer, with respect to each Plan set forth on Schedule 5.19(a) and to the extent applicable: (i) where the Benefit Plan has been reduced to writingthree most recent Forms 5500 annual returns/reports filed with the Department of Labor and all schedules thereto, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writingmost recent summary plan description (including all summaries of material modification thereto), a written summary of all material plan terms; (iii) where applicablethe most recent actuarial report or valuation required to be prepared under applicable Legal Requirements, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptionsall material, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material non-routine notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other any Governmental Authority relating to during the Benefit Planpast three years, and (v) Forms 1094-C and 1095-C for the three previous calendar years.
(c) Neither the Company nor any ERISA Affiliate Affiliates of the Company contributes to nor has ever maintainedany obligation to contribute to, or has, within the past six years, contributed to, to or had an obligation to contribute to, or incurred any Liability with respect to, either and no Plan is (i) a multiemployer plan, as such term is defined in Sections plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA, (ii) a defined benefit plan within the meaning of Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code or (iii) a multiple employer welfare arrangement within the meaning of Section 430 3(40) of ERISA or a multiple employer plan within the meaning of Section 413(c) of the Code or Section 302 or Section 303 210 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained Except as provided on Schedule 5.19(a), no Plan is funded through a trust that is intended to be exempt from federal income taxation pursuant to any “employee welfare benefit plan” as defined in Section 3(1501(c)(9) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA)the Code.
(d) Each Benefit Except as set forth on Schedule 5.19(d):
(i) (A) each Plan has been established, operated and administered and maintained materially in accordance compliance in all material respects with its terms governing documents and applicable Legal Requirements, and (B) each Plan that could be a “nonqualified deferred compensation” arrangement under Section 409A of the Code is in compliance in all material respects with all applicable Laws (including ERISA such Section or an exemption therefrom, and the Code).no service provider is entitled to a Tax gross-up or similar payment for any Tax or interest that may be due under such Section;
(eii) Nothing Each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and is the subject of a favorable determination, advisory or opinion letter as to its qualification upon which the Company can rely and, to the Knowledge of Seller, no event has occurred with respect to any Benefit Plan or circumstances exist that has subjected or could would reasonably be expected to subject result in the Company loss of the tax-qualified status of any such Plan or the tax-exempt status of a related trust;
(iii) there are no Claims pending (other than routine claims for benefits) or, to the Knowledge of Seller, threatened against, or with respect to, any of its ERISA Affiliates orthe Plans or their assets;
(iv) all contributions required to be made to the Plans pursuant to their terms and provisions or pursuant to applicable Legal Requirements have been timely made in all material respects;
(v) no act, with respect to any period on omission or after the Closing Date, Parent or any of its Affiliatestransaction has occurred which, to a penalty under Section 502 the Knowledge of ERISASeller, would reasonably be expected to any liability for a result in imposition on the Company, directly or indirectly, of (A) breach of fiduciary duty liability damages under Section 409 of ERISA, (B) a penalty assessed pursuant to Section 502 of ERISA or (C) a Tax imposed pursuant to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652Code;
(vi) to the Knowledge of Seller, 4975 or 4980H there is no matter pending with respect to any of the Code.Plans before any Governmental Authority; and
(fvii) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with execution and delivery of this Agreement and the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books consummation of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
Transactions will not (gA) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject require the Company to make a larger contribution to, or pay greater compensation, payments or benefits under, any Liability under the terms of the Benefit Plans or applicable Law relating thereto other Plan than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or they otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultantwould, whether or not legally bindingsome other subsequent action or event would be required to cause such payment or provision to be triggered, or (B) create or give rise to adopt, amend, modify any additional vested rights or terminate service credits under any Benefit Plan in Plan.
(e) In connection with the consummation of the transactions Transactions, no payments of money or property, acceleration of benefits, or provisions of other rights have or will be made under this Agreement, under any agreement, plan or other program contemplated by in this Agreement or otherwiseunder the Plans which could result in imposition of the sanctions imposed under Sections 280G and 4999 of the Code, whether or not some other subsequent action or event would be required to cause such payment, acceleration or provision to be triggered, as determined without regard to any arrangements entered into prior to Closing at the direction of Buyer or any of its Affiliates or between Buyer and its Affiliates, on the one hand, and a “disqualified individual” (within the meaning of Section 280G) on the other hand.
(if) Other than as Except to the extent required by pursuant to Section 601 et. seq. of ERISA, Section 4980B 4980B(f) of the Code and the Consolidated Omnibus Budget Reconciliation Act corresponding provisions of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)similar state Legal Requirements, no Benefit Plan provides post-termination retiree medical or retiree health life insurance benefits to any individual for any reasonPerson, and neither the Company nor any of its ERISA Affiliates has any Liability is not contractually or otherwise obligated (whether or not in writing) to provide post-any Person with life insurance or medical benefits upon retirement or termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Lawof employment.
(jg) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Each Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or that is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute paymentsgroup health plan” within the meaning of Section 280G(b733(a)(1) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have ERISA is currently and has been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company BoardPatient Protection and Affordable Care Act, nor has the exercise price of any such Option been determined retroactivelyPub.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KLX Energy Services Holdings, Inc.)
Employee Benefit Matters. (a) Section 3.20(a3.21(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by the Company, or under which the Company or any of its ERISA Affiliates has or may have any Liability, or with respect to which the Company has Purchaser or may any of its Affiliates would reasonably be expected to have any Liability Liability, contingent or otherwise (as listed on Section 3.21(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent Purchaser accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies in the case of material noticesany Benefit Plan that is intended to be qualified under Section 401(a) of the Code, letters a copy of the most recent determination, opinion or other correspondence advisory letter from the Internal Revenue Service; and (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, Department a copy of Laborthe most recently filed Forms 5500, Department of Health with schedules and Human Services, or other Governmental Authority relating to the Benefit Planfinancial statements attached.
(c) Each Benefit Plan and related trust has been established, administered and maintained in accordance with its terms and in compliance with all applicable Laws (including ERISA, the Code and any applicable state or local Laws).
(d) Neither the Company nor any of its ERISA Affiliate Affiliates has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer planincurred or reasonably expects to incur, as such term is defined in Sections 3(37) either directly or 4001(a)(3) of ERISA indirectly, any material Liability under Title I or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Guaranty Corporation; (iii) withdrawn from any Benefit Plan; or (iv) engaged in any transaction that would give rise to liability under Section 302 4069 or Section 303 4212(c) of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant .
(e) With respect to any each Benefit Plan (i) no such plan is a Multiemployer Plan; (ii) no such plan is a “employee welfare benefit multiple employer plan” as defined in within the meaning of Section 3(1413(c) of ERISA the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
; and (diii) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and no such plan is subject to the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any minimum funding standards of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D 412 of the Code or Sections 6652, 4975 or 4980H Title IV of the CodeERISA.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan or other arrangement provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jg) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kh) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Each Benefit Plan that would increase the annual expense of maintaining such plan above the level is subject to Section 409A of the expense Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. The Company does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred for pursuant to Section 409A of the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicableCode.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(mi) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (viv) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (viv) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a3.17(a) of the Disclosure Schedules contains a true and complete list of each “"employee benefit plan” " as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974 (as amended, and including the regulations thereunder, "ERISA"), whether or not such plan is written and whether or not subject to ERISA) , and each supplemental retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, equity, change in control, retention, severance, salary continuation, and other benefit similar agreement, plan, policy, program, plan or arrangementpractice, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements which is or understandings, in each such case, that is sponsoredhas been established, maintained, administered sponsored, or contributed to by the Company or with respect to under which the Company has or may have any Liability (each, a “"Benefit Plan”"). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to For each Benefit Plan, the Company has made available to Parent Purchaser accurate, current current, and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has , or if not been reduced to writing, a written summary of all material plan terms; (ii) any written contracts and arrangements related to such Benefit Plan, including trust agreements or other funding arrangements, and insurance policies, certificates, and contracts; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as case of a result Benefit Plan intended to be qualified under Section 401(a) of the transactions contemplated Code, the most recent favorable determination or national office approval letter issued by this Agreement or otherwisethe Internal Revenue Service and any legal opinions issued thereafter with respect to the Benefit Plan's continued qualification; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating the most recent Form 5500 filed with respect to any such Benefit Plan; and (v) copies of any material notices, letters audits, inquiries, or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Servicesfrom, or other filings with, any Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan and related trust has been established, administered administered, and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) . Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Purchaser or any of its Affiliates, to a penalty under Section 502 of ERISAcivil action, to any liability for a breach of fiduciary duty under Section 409 of ERISApenalty, surcharge, or to tax Tax under applicable Law or penalty under Chapter 43 which would jeopardize the previously-determined qualified status of Subtitle D of the Code or Sections 6652any Benefit Plan. All benefits, 4975 or 4980H of the Code.
(f) With respect contributions, and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amountsLaws and accounting principles. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits Benefits accrued under any unfunded Benefit Plan have been paid, accrued accrued, or otherwise adequately reserved for to the extent required by, and in accordance with, by GAAP.
(gd) All reports The Company has not incurred and disclosures relating does not reasonably expect to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
incur: (hi) There exists no condition that would subject the Company to any Liability under the terms Title I or Title IV of ERISA, any related provisions of the Benefit Plans Code, or applicable Law relating thereto other than to any payment Benefit Plan; or (ii) any Liability to the Pension Benefit Guaranty Corporation. No complete or partial termination of benefits in the normal course of plan operation. Each any Benefit Plan can be amended, terminated has occurred or otherwise discontinued after the Closing in accordance with its terms, without material liabilities is expected to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. occur.
(e) The Company has no commitment not now or obligation and has not made at any representations to time within the previous six years contributed to, sponsored, or maintained: (i) any employee, officer, director, independent contractor "multiemployer plan" as defined in Section 3(37) of ERISA; (ii) any "single-employer plan" as defined in Section 4001(a)(15) of ERISA; (iii) any "multiple employer plan" as defined in Section 413(c) of the Code; (iv) any "multiple employer welfare arrangement" as defined in Section 3(40) of ERISA; (v) a leveraged employee stock ownership plan described in Section 4975(e)(7) of the Code; or consultant, whether or not legally binding, to adopt, amend, modify or terminate (vi) any other Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwisesubject to required minimum funding requirements.
(if) Other than as required by Section under Sections 601 et. seq. to 608 of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(mg) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (will, either alone or upon the occurrence of in combination with any additional or subsequent events): other event: (i) entitle any current or former director, officer, employee, independent contractor contractor, or consultant of the Company to any severance pay pay, increase in severance pay, or any other payment; (ii) accelerate the time of payment, funding funding, or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “any "excess parachute payments” " within the meaning of Section 280G(b) of the Code; or (vi) require a “"gross-up” " or other payment to any “"disqualified individual” " within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a3.19(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off (PTO), medical, vision, dental, disability, welfare, Code Section 125 cafeteria, fringe benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, program, plan which the Company has maintained or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or required to be contributed to by the Company for the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Company or any spouse or dependent of such individual, or under which the Company or any of its ERISA Affiliates has or may have any Liability, or with respect to which the Company has Buyer or may any of its Affiliates would reasonably be expected to have any Liability Liability, contingent or otherwise (as listed on Section 3.19(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of separately identified in Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a3.19(a) of the CodeDisclosure Schedules each Benefit Plan that contains a change in control provision.
(b) With respect to each Benefit Plan, the Company each Seller Party has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement Transactions or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, COBRA communications, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service and any legal opinions issued thereafter with respect to such Benefit Plan’s continued qualification; (vi) in the case of any Benefit Plan for which a Form 5500 must be filed, a copy of the two most recently filed Forms 5500, with all corresponding schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) Each Benefit Plan that is or was subject intended to Title IV be qualified within the meaning of ERISA or Section 412 or Section 430 401(a) of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or (a “multiple employer welfare arrangement” (as defined in Section 3(40Qualified Benefit Plan”) of ERISA).
(d) Each is so qualified and received a favorable and current determination letter from the Internal Revenue Service with respect to the most recent five year filing cycle, or with respect to a prototype or volume submitter plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan or volume submitter plan sponsor, to the effect that such Qualified Benefit Plan has been established, administered is so qualified and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) , and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(fd) With respect All benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company Laws and accounting principles, and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(ge) All reports Neither the Company nor any of its ERISA Affiliates has ever sponsored, administered or otherwise contributed to (and disclosures relating no Company Benefit Plan is) any of the following: (1) a plan subject to Section 302 or Title IV of ERISA or Section 412 of the Benefit Plans required Code; (2) a “multiemployer plan” (as defined under Section 3(37) of ERISA) or a collectively bargained plan subject to be filed with Section 413 of the Code; (3) a “single employer plan” (as defined under Section 4001(a)(15) of ERISA) that could result in liability for the Company under Section 4063 or furnished to 4064 of ERISA (i.e., a Governmental Authority multiple-employer plan); (4) self-insured “group health plan” (as defined under Section 5000(b)(1) of the Code); (5) a “voluntary employees’ beneficiary association” (as defined under Section 501(c)(9) of the Code); or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in (6) a timely mannermultiple employer welfare arrangement (MEWA).
(hf) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to ParentBuyer, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement Transactions or otherwise.
(ig) Other than as required by Section under Sections 601 et. seq. to 608 of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jh) There is no pending or, to the CompanySeller’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the five (5) year prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(ki) There has been no amendment to, announcement by the Company any Seller Party, or any of its their Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year (other than on a de minimis basis or for customary market inflation) with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company . No Seller Party nor any of its their Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement with respect to a Benefit Plan.
(mj) Neither Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. The Company does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(k) Each individual who is classified by the Company as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.
(l) Except as set forth in Section 3.19(l) of the Disclosure Schedules, neither the execution of this Agreement nor the consummation of any of the transactions contemplated by this Agreement Transactions will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, manager, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend amend, or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(nm) All Options The Company is in compliance in all material respects with all applicable requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and all regulations thereunder (together, the “ACA”), as well as any similar provisions of state or local law, including all requirements relating to eligibility waiting periods and the offer of or provision of minimum essential coverage that is compliant with Section 36B(c)(2)(C) of the Code and the regulations issued thereunder to full-time employees as defined in Section 4980H(c)(4) of the Code and the regulations issued thereunder. No excise tax or penalty under the ACA, including Sections 4980D and 4980H of the Code, is outstanding, has accrued, or has arisen with respect to any period prior to the Closing, with respect to any Benefit Plan. The Company does not have been duly authorized by any unsatisfied obligations to any Company employees or qualified beneficiaries pursuant to the ACA, or any state or local Law governing health care coverage or benefits that would result in any liability to the Company. The Company Board in has maintained all records necessary to demonstrate its compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of ACA and any such Option been determined retroactivelyother similar state or local law.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (PLAYSTUDIOS, Inc.)
Employee Benefit Matters. (a) Section 3.20(a3.16(a) of the Qumu Disclosure Schedules contains Letter sets forth a true complete and complete accurate list of all material Qumu Employee Plans. With respect to each Qumu Employee Plan maintained or sponsored by a professional employer organization (“employee benefit plan” as that term is defined PEO Plans”), the representations and warranties in this Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or 3.16 are made with respect to which the Company has or may have Qumu’s participation in any Liability (each, PEO Plan as a “Benefit Plan”)participating employer. The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Each PEO Plan is identified as such on Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a3.16(a) of the CodeQumu Disclosure Letter and no representation or warranty is made with respect to any other participating employer in a PEO Plan or as to the PEO Plan as a whole. Other than as required by applicable Legal Requirements or as otherwise required by this Agreement or in the ordinary course of business, neither Qumu nor any ERISA Affiliate of Qumu has committed to any officer, or publicly communicated to any other employees to establish any new Qumu Employee Plan, to modify or amend (except as required by applicable law) any Qumu Employee Plan or to adopt or enter into any Qumu Employee Plan.
(b) With respect to each Benefit Qumu Employee Plan, the Company Qumu has made available to Parent accurate, current Synacor complete and complete accurate copies of each of the following: (i) where the Benefit such Qumu Employee Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, or a written summary of any unwritten plan) together with all material plan terms; amendments thereto and all related trust documents, (iiiii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any most recent summary plan descriptions, summaries including any summary of material modifications, summaries of benefits and coverage, employee handbooks modifications thereto and any other similar written communications material description made available to participants therein, (or a description iii) in the case of any oral communicationsplan that is intended to be qualified under Section 401(a) of the Code, the most recent determination, opinion, notification or advisory letter from the IRS, and correspondence between the IRS or the DOL on the one hand and Qumu on the other hand with respect to such letter, (iv) group annuity contracts, insurance contracts or other funding vehicles, administration and similar material agreements, investment management or investment advisory agreements, (v) in the case of any plan for which Forms 5500 are required to be filed, the most recent annual report (Form 5500) with schedules attached, (vi) the most recent financial statements for such Qumu Employee Plan, and (vii) all material correspondence to or from any governmental agency relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from Qumu Employee Plan within the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Planpast year.
(c) Except as would not reasonably be expected to result in a Qumu Material Adverse Effect, (i) each Qumu Employee Plan has been established, maintained and administered in accordance with all applicable Legal Requirements, including if applicable, ERISA and the Code, and in accordance with its terms, and (ii) each of Qumu, Qumu’s Subsidiaries and their respective ERISA Affiliates have (A) met their obligations with respect to each Qumu Employee Plan and (B) have timely made or properly accrued on the financial statements in accordance with GAAP all required contributions or other amounts payable with respect thereto.
(d) All Qumu Employee Plans that are intended to be qualified under Section 401(a) of the Code, and all trusts that are intended to be qualified under Section 501(a) of the Code (each, a “Qumu Qualified Plan”), have (i) received determination, opinion or advisory letters from the IRS to the effect that such Qumu Employee Plans are qualified and the plans and trusts related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or Qumu has remaining a period of time under applicable U.S. Department of the Treasury regulations or IRS pronouncements in which to apply for such a letter and to make any amendments necessary to obtain a favorable determination as to the qualified status of each such Qumu Qualified Plan and (ii) no such determination, opinion or advisory letter has been revoked and no event or circumstance exists that has materially and adversely affected or would reasonably be expected to materially and adversely affect such qualification or exemption. Except as would not reasonably be expected to result in Qumu Material Adverse Effect, no “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Qumu Employee Plan.
(e) Neither the Company Qumu, any of Qumu’s Subsidiaries nor any of their respective ERISA Affiliate Affiliates has ever in the preceding six (6) years maintained, participated in or contributed to, had an obligation to (or been obligated to contribute to), or incurred any Liability can reasonably expect to have future liability with respect to, either to (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was Pension Plan subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1Code; (ii) of ERISA or a “multiple employer welfare arrangementmultiemployer plan” (as defined in Section 4001(a)(3) of ERISA), (iii) a “multiple employer plan” as defined in ERISA or the Code, or (iv) multiple employer welfare arrangement (within the meaning of Section 3(40) of ERISA).
(d) Each Benefit . No Qumu Employee Plan has been establishedis funded by, administered and maintained materially in accordance associated with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, related to a penalty under “voluntary employees’ beneficiary association” within the meaning of Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H 501(c)(9) of the Code. No Qumu Employee Plan provides health benefits that are not fully insured through an insurance contract.
(f) With respect Each Qumu Employee Plan (other than the Qumu Stock Plan or an employment, severance, change in control or similar agreement with an individual) is amendable and terminable unilaterally by Qumu and any of Qumu’s Subsidiaries party thereto or covered thereby at any time without material liability to each Benefit PlanQumu or any of its Subsidiaries as a result thereof, all payments due from other than for benefits accrued as of the Company have either been timely made in accordance with the terms date of such Benefit Plan amendment or termination and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAProutine administrative costs.
(g) All reports Other than as required under Section 601 et seq. of ERISA or equivalent state or local law, Qumu does not have any material liability in respect of, or material obligation to provide, health or other welfare benefits (excluding normal claims for benefits under Qumu’s group life insurance, accidental death and disclosures relating dismemberment insurance and disability plans and policies) or coverage to any person following retirement or other termination of employment (other than continuation coverage through the Benefit Plans required to be filed with end of the month in which such termination or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerretirement occurs).
(h) There exists is no condition that would subject action, suit, proceeding, claim, arbitration, audit or investigation pending or, to the Company Knowledge of Qumu, threatened or reasonably anticipated, with respect to any Liability under Qumu Employee Plan or the terms assets of any Qumu Employee Plan or Qumu Non-U.S. Employee Plan or the Benefit Plans or applicable Law relating thereto assets of any Qumu Non-U.S. Employee Plan, other than any payment of claims for benefits in the normal course ordinary course.
(i) Except as would not reasonably be expected to result in a Qumu Material Adverse Effect, each Qumu Non-U.S. Employee Plan is in material compliance with all applicable Legal Requirements of plan operationeach applicable jurisdiction. Each Benefit such Qumu Non-U.S. Employee Plan can be amended, terminated is funded to the extent required by applicable Legal Requirements or otherwise discontinued after the Closing applicable terms of such plan or has been accrued for to the extent required by GAAP or other applicable accounting rules. Section 3.16(i) of the Qumu Disclosure Letter contains a complete and accurate list of each country in accordance with its terms, without material liabilities to Parent, the Company which Qumu or any of their its Subsidiaries or Affiliates has employees or independent contractors as of the date of the Qumu Balance Sheet.
(j) Section 3.16(j) of the Qumu Disclosure Letter sets forth a complete and accurate list of (i) all employment agreements with employees of Qumu or any of its Subsidiaries, other than (A) standard form offer letters, (B) other similar employment agreements entered into in the ordinary administrative expenses typically incurred course of business and (C) agreements materially consistent with such standard forms, in a termination event. The Company has no commitment the case of (A), (B) and (C) that can be terminated by Qumu without notice, liability or obligation obligation; and has not made (ii) all severance agreements, programs and policies of Qumu or any representations of its Subsidiaries with or relating to any employeeits Section 16 officers, officerexcluding programs and policies required to be maintained by Legal Requirement.
(k) Other than as set forth on Section 3.16(k) of the Qumu Disclosure Letter and Sections 1.4(c) and 7.7(c) of this Agreement, director, independent contractor the negotiation or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISAwill not, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): in combination with another event, (i) entitle any current or former employee, director, officerconsultant or officer of Qumu or any Subsidiary of Qumu to any acceleration, employeeincrease in acceleration rights, independent contractor severance, or consultant of the Company to increase in severance pay pay, or any other payment; material compensation or benefit, (ii) accelerate the time of paymentdistribution, funding payment or vestingvesting (whether or not in connection with a non-competition provision), a lapse of repurchase rights or increase the amount of any material compensation (including stock-based compensation) or benefits due to any such individual; employee, director or officer, (iii) limit result in the forgiveness of indebtedness, or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under trigger an obligation to fund benefits. No payment or result in benefit which will or may be made by Qumu or its ERISA Affiliates will, either alone or together with any other material obligation event or events, give rise to the payment of any amount that would not be deductible pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) 280G of the Code; . There is no contract, agreement, plan or (vi) require arrangement to which Qumu or any Subsidiary of Qumu is a “party or by which it is bound that provides any individual with the right to a gross-up” , indemnification, reimbursement or other payment for any excise or additional taxes, interest or penalties incurred pursuant to any “disqualified individual” within the meaning of Section 280G(c) 409A or Section 4999 of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Merger Agreement (Qumu Corp)
Employee Benefit Matters. (a) Set forth in Section 3.20(a------------------------ 3.17(a) of the Disclosure Schedules contains Schedule is a true and complete list of each “"employee benefit plan” " (as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each all other benefit agreementmaterial employee benefit, programbonus, plan or arrangement, including, without limitation, each bonus planincentive, deferred compensation plancompensation, supplemental retirementstock purchase, incentive compensation or retention planstock option, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreementseverance, change in control agreementand fringe benefit plans (other than any employment or personnel policy, golden parachute agreement practice or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered procedure) maintained or contributed to by any Subsidiary or Asset Seller for current or former employees or directors of the Company Electrophysiology Business, or with respect to which any Subsidiary or an Asset Seller could incur liability under Section 4069, 4201 or 4212(c) of ERISA (collectively, the Company has or may have any Liability (each, a “"Seller Benefit Plans"). With respect to each Seller Benefit Plan”). The Company , the Seller -------------------- has never adoptedmade available to the Purchaser a true and complete copy of the following, entered intoif any: (i) the most recent summary plan description for each Seller Benefit Plan for which a summary plan description is required, maintained(ii) such Seller Benefit Plan, sponsoredand each trust agreement relating to such Seller Benefit Plan, contributed to(iii) in the case of each Seller Benefit Plan applicable to United States employees of the Electrophysiology Business, been required to contribute tothe most recent annual report (Form 5500) filed with the United States Internal Revenue Service, or had any Liability and (iv) the most recent determination letter issued by the United States Internal Revenue Service with respect to, to any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify Seller Benefit Plan qualified under Section 401(a40l(a) of the Code.
(b) With respect to each the Seller Benefit PlanPlans, no event has occurred and there exists no condition or set of circumstances in connection with which any Subsidiary or Asset Seller could be subject to any liability under the terms of such Seller Benefit Plans, ERISA, the Company has made available Code or any other applicable Law that would have a Material Adverse Effect. Except as would not have a Material Adverse Effect, the Seller Benefit Plans and their related trusts intended to Parent accurate, current qualify under Sections 401(a) and complete copies of each 501(a) of the following: (i) where the Benefit Plan has been reduced to writingCode, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writingrespectively, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Planare so qualified.
(c) Neither the Company nor any ERISA Affiliate has ever maintainedExcept as would not have a Material Adverse Effect, contributed to, had an obligation to contribute to, or incurred any Liability with respect toto each Seller Benefit Plan that is a retirement plan and is applicable to non-United States employees (each, either a "Foreign Seller Retirement Plan"): ------------------------------
(i) a multiemployer planall employer and employee contributions to each separately funded Foreign Seller Retirement Plan required by Law or by the terms of such Foreign Seller Retirement Plan have been made, as or if applicable, accrued in accordance with normal accounting practices prevailing in the country in which such term plan is defined in Sections 3(37) or 4001(a)(3) of ERISA or established;
(ii) an all premiums due and all employer and employee pension benefit contributions collected in respect of each insured Foreign Seller Retirement Plan have been paid;
(iii) all amounts required to be reserved under each book reserved Foreign Seller Retirement Plan have been so reserved in accordance with normal accounting practices prevailing in the country in which such plan is established;
(as defined iv) each Foreign Seller Retirement Plan required to be registered with a Governmental Authority has been registered and has been maintained in Section 3(2good standing with the appropriate Governmental Authorities; and
(v) no event has occurred and there exists no condition or set of ERISA) that is or was circumstances in connection with which any Subsidiary could be subject to Title IV of ERISA any Liability under any Seller Foreign Retirement Plan or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in under any union-sponsored multiemployer welfare benefit fund maintained pursuant applicable Law with respect to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA)Seller Foreign Retirement Plan.
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred There are no outstanding agreements or arrangements providing for severance payments with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D employees of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition Electrophysiology Business that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in have a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwiseMaterial Adverse Effect.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aSchedule 3.17(a) of the Disclosure Schedules contains a true and complete list of each lists all “employee benefit planplans,” as that term is defined in Section 3(3) of ERISA the Employee Retirement Income Security Act of 1974, as amended (whether or not such plan is subject to “ERISA”) and each all other benefit agreementretirement, programpension, plan or arrangementprofit sharing, includingbonus, without limitationstock, each bonus planrestricted stock, stock option, stock purchase, equity-based, profits interest, phantom equity, employment, service, retainer, compensation, consulting, change in control, welfare, health, life, disability, group insurance, savings, deferred compensation plan, supplemental retirementcompensation, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance programcompensation, paid time off policyoff, employment agreementseverance, consulting agreementsalary continuation, retention incentive agreementretention, noncompetition agreementindemnification and fringe benefit agreements, confidentiality agreementarrangements, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreementsContracts, arrangements policies, or understandings, in each such case, that is sponsored, practices maintained, administered contributed to, or required to be contributed to by Seller or any ERISA Affiliate for the Company benefit of any current or former employee, officer, manager, member, partner or independent contractor of Seller or with respect to which the Company has Seller or any ERISA Affiliate may have any Liability (each, a the “Benefit PlanPlans”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within In the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies case of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or ERISA, Schedule 3.17(a) discloses whether such plan is (i) unfunded, (ii) funded through a “multiple employer welfare arrangementbenefit fund,” (as such term is defined in Code Section 3(40419(e), or other funding mechanism or (iii) of ERISA)insured.
(db) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates orAs applicable, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, Seller has delivered or made available to Buyer true and complete copies of (i) all payments due plan documents (including all amendments and modifications thereof) and in the case of an unwritten Benefit Plan, a written description thereof, (ii) the current summary plan description and each summary of material modifications thereto, (iii) the most recent Internal Revenue Service (“IRS”) determination, advisory or opinion letter and (iv) all communications, records, notices and filings received from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, sent to the extent required by GAAPIRS, adequate reserves are reflected on the financial statements Department of the Company for such amounts. All premiums required to be paid for each insurance policy funding all Labor or any portion of the benefits under any Pension Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAPGuaranty Corporation.
(gc) All reports Seller and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its each ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, Affiliate are each Benefit Plan has been operated in compliance in all material respects with COBRA the provisions of ERISA, the Code and all other similar Laws applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Plans. Each Benefit Plan has been maintained, operated and administered in compliance in all material respects with its terms and any related documents or agreements and the subject applicable provisions of an examination ERISA, the Code and all other Laws. Seller and each ERISA Affiliate has timely and accurately satisfied its reporting obligations under Sections 6055 and 6056 of the Code. None of the Seller, any ERISA Affiliate, nor any Employee Benefit Plan fiduciary has, with respect to the Employee Benefit Plans, engaged in a breach of fiduciary duty or audit a non-exempt “prohibited transaction,” as such term is defined in Section 4975 of the Code or Section 406 of ERISA. No Benefit Plan provides for or continues medical or health benefits, or life insurance or other welfare benefits (through insurance or otherwise) for any Person or any dependent or beneficiary of any Person beyond termination of service or retirement other than coverage mandated by Law, and neither Seller nor any ERISA Affiliate has made a Governmental Authority written or the subject of an application oral promise, or filing under or is a participant incommunication that could reasonably be expected to promise, an amnesty, voluntary compliance, self-correction or similar program sponsored by to any Governmental AuthorityPerson to provide any such benefits.
(kd) There has All contributions (including all employer contributions and employee salary reduction contributions) and premium payments which are or have been no amendment to, announcement by the Company due have been paid to or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to each Benefit Plan within the time required by law. All required or discretionary (in accordance with historical practices) payments, premiums, contributions, reimbursements, or accruals for all periods ending prior to or as of the Closing Date shall have been made or properly accrued on the Interim Balance Sheet or will be properly accrued on the books and records of Seller and each ERISA Affiliate as of the Closing Date. None of the Benefit Plans has any director, officer, employee, independent contractor unfunded liabilities which are not reflected on the Interim Balance Sheet or consultant, as applicable.
(l) Neither the Company books and records of Seller and each ERISA Affiliate. None of Seller nor any of its Affiliates ERISA Affiliate has any commitment assets subject to (or obligation or has made any representations expected to any director, officer, employee, independent contractor or consultant, whether or not legally binding, be subject to) a lien for unpaid contributions to adopt, amend, modify or terminate any Benefit Plan.
(me) No Benefit Plan is (or at any time has been) subject to Part 3, Subtitle B of Title I of ERISA, Title IV of ERISA or Code Section 412. Neither the execution of this Agreement Seller nor any ERISA Affiliate (i) has ever contributed to, or been required to contribute to any “multiemployer plan” (as defined in Section 3(37) of ERISA) and (ii) has ever had any Liability (contingent or otherwise) relating to a multiemployer plan.
(f) None of the Benefit Plans, nor any trust created thereunder, now holds or has heretofore held as assets any stock or securities issued by the Seller or any ERISA Affiliate.
(g) All Benefit Plans which are “employee pension benefit plans” within the meaning of Section 3(2) of ERISA and which are intended to meet the qualification requirements of Code Section 401(a) now meet, and at all times since their inception have met, the requirements for such qualification, and the related trusts are now, and at all times since their inception have been, exempt from taxation under Code Section 501(a). Each Benefit Plan that is intended to be qualified under Code Section 401(a) has received a favorable determination letter (or an opinion or advisory letter on which it is entitled to rely) from the IRS that such Benefit Plan is qualified under Code Section 401(a). No event has occurred that will or could give rise to the revocation of any applicable determination letter or the loss of the right to rely on any applicable opinion or advisory letter, or the disqualification or loss of tax-exempt status of any such Benefit Plan or trust under Code Sections 401(a) or 501(a).
(h) Seller’s and each Shareholder’s execution of, and performance of the transactions contemplated by by, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events): ) result in any payment, acceleration, vesting or increase in benefits with respect to any Person. No payment which is or may be made with respect to any Person, either alone or in conjunction with any other payment, event or occurrence will or could properly be characterized as an “excess parachute payment” under Code Section 280G. No Assumed Liability is an obligation to make a payment that is not deductible under Code Section 280G. No Person is entitled to receive any additional payment (including any tax gross-up or other payment) as a result of the imposition of the excise taxes required by Code Section 4999.
(i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of Each Benefit Plan that constitutes a “non-qualified deferred compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute paymentsplan” within the meaning of Code Section 280G(b409A, complies (and has at all relevant times complied) in both form and operation with the requirements of Code Section 409A so that no amounts paid pursuant to any such Benefit Plan is subject to tax under Code Section 409A; and neither Seller nor any ERISA Affiliate is or has been required to report any Taxes due as a result of a failure of a Benefit Plan to comply with Code Section 409A. With respect to each Benefit Plan, neither Seller nor any ERISA Affiliate has any indemnity obligation for any Taxes or interest imposed or accelerated under Code Section 409A.
(j) Seller and each ERISA Affiliate has, for each month in which it has been an “applicable large employer member” under Section 4980H of the Code, offered “minimum essential coverage” (as defined in Section 5000A of the Code) which satisfies the affordability and minimum value standards under Section 4980H of the Code to: (i) all common law employees who must be treated as “full-time employees” under Section 4980H of the Code; and (ii) the dependents of such employees. Neither Seller nor any ERISA Affiliate have been assessed a penalty under Section 4980H of the Code and no such penalty is pending, threatened, anticipated, or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) should reasonably be anticipated. Seller and each ERISA Affiliate have timely satisfied their obligations under Sections 6055 and 6056 of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Asset Purchase and Contribution Agreement (Andover National Corp)
Employee Benefit Matters. (a) Section 3.20(a) of the Disclosure Schedules contains a true and complete list of each “pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each "employee benefit plan” as that term is defined in " within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, program, plan which is or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, been maintained, sponsored, contributed to, been or required to contribute tobe contributed to by the Company for the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Company or any spouse or dependent of such individual, or had under which the Company or any Liability of its ERISA Affiliates has or may have any Liability, or with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, which Buyer or any plan intended of its Affiliates would reasonably be expected to qualify under have any Liability, contingent or otherwise (as listed on Section 401(a3.20(a) of the CodeDisclosure Schedules, each, a "Benefit Plan"). The Company has separately identified in Section 3.20(a) of the Disclosure Schedules each Benefit Plan that contains a change in control provision.
(b) With respect to each Benefit Plan, the Company has Sellers have made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Form 5500, with schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Neither To Sellers’ Knowledge, each Benefit Plan and related trust (other than any multiemployer plan within the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections meaning of Section 3(37) or 4001(a)(3) of ERISA or (iieach a "Multiemployer Plan")) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and, the Code and any applicable local Laws). To Sellers’ Knowledge, each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a "Qualified Benefit Plan") is so qualified and has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) Nothing , and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. To Sellers’ Knowledge, nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f) With respect . All benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(gd) All reports and disclosures Neither the Company nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Plans required Guaranty Corporation; (iii) withdrawn from any Benefit Plan; or (iv) engaged in any transaction which would give rise to be filed with liability under Section 4069 or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerSection 4212(c) of ERISA.
(he) There exists With respect to each Benefit Plan (i) no condition that would such plan is a Multiemployer Plan; (ii) no such plan is a "multiple employer plan" within the meaning of Section 413(c) of the Code or a "multiple employer welfare arrangement" (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA, and none of the assets of the Company or any ERISA Affiliate is, or may reasonably be expected to become, the subject of any lien arising under Section 302 of ERISA or Section 412(a) of the Code; and (v) no "reportable event," as defined in Section 4043 of ERISA, has occurred with respect to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. such plan.
(f) Each Benefit Plan can be amended, terminated or otherwise discontinued by the Company before the Closing in accordance with its terms, or after the Closing in accordance with its terms, without material liabilities to ParentBuyer, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(ig) Other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health welfare benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health welfare benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jh) There is no pending or, to the Company’s Seller's Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(ki) There has been no amendment to, announcement by Sellers, the Company or any of its their Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither . None of Sellers, the Company Company, nor any of its their Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement.
(j) Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. The Company does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(k) Each individual who is classified by the Company as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.
(ml) Neither Except as set forth in Section 3.20(l) of the Disclosure Schedules, neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “"excess parachute payments” " within the meaning of Section 280G(b) of the Code; or (vi) require a “"gross-up” " or other payment to any “"disqualified individual” " within the meaning of Section 280G(c) of the Code. There have been no Section 280G calculations prepared (whether or not final) with respect to any disqualified individual in connection with the transactions contemplated herein.
(m) The Company and any co-employer of PEO Employees has complied in all material respects with COBRA, the Family Medical Leave Act of 1993, as amended, the Women's Health and Cancer Rights Act of 1998, the Newborns’ and Mothers’ Health Protection Act of 1996, and any similar provisions of state law applicable to Company's employees and PEO Employees. The Company has no unsatisfied obligations to any of its employees or qualified beneficiaries pursuant to COBRA, HIPAA or any state law governing health care coverage or extension. The co-employer of the PEO Employees does not have any unsatisfied obligations to any PEO Employees or qualified beneficiaries pursuant to COBRA, HIPAA or any state law governing health care coverage or extension.
(n) All Options have been duly authorized by The Company has complied in all material respects with all applicable requirements of the Patient Protection and Affordable Care Act of 2010, including, without limitation, offering affordable coverage to a sufficient number of Employees of the Company Board in compliance with to avoid penalties thereunder and providing reports to the terms of the Stock Option Plan. No Options have been retroactively granted Internal Revenue Service and Company employees as required by the Company Board, nor has the exercise price of any such Option been determined retroactivelyCode Sections 6055 and 6056.
Appears in 1 contract
Samples: Stock Purchase Agreement (Turning Point Brands, Inc.)
Employee Benefit Matters. (a) Section 3.20(a4.19(a) of the Disclosure Schedules contains Schedule sets forth a true and complete list of each “(i) all employee benefit plan” as that term is plans (including those defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each all bonus, stock option, phantom stock, share appreciation rights, stock purchase, restricted stock, restricted stock units, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change-in-control or other benefit agreementplans, programprograms or arrangements, and all employment, termination, severance or other contracts or agreements, whether legally enforceable or not, to which the Company or the Company Subsidiary is a party, with respect to which the Company, the Company Subsidiary or any ERISA Affiliate has any obligation or which are maintained, contributed to or sponsored by the Company, the Company Subsidiary or any ERISA Affiliate for the benefit of any current or former employee, officer or director of the Company or the Company Subsidiary, or the dependents thereof, (ii) each employee benefit plan for which the Company or arrangementthe Company Subsidiary could incur Liability under Section 4069 of ERISA in the event such plan has been or were to be terminated, (iii) any plan in respect of which the Company or the Company Subsidiary could incur Liability under Section 4212(c) of ERISA, and (iv) any Contracts between the Company, the Company Subsidiary or any of their respective Affiliates and any employee of the Company or the Company Subsidiary, including, without limitation, each bonus planany Contracts relating to the Merger (collectively, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit PlanPlans”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, The Parent or the Company has made available delivered to Parent accurate, current the Acquiror complete and complete accurate copies of each of the followingof: (i) where the Benefit each written Plan has been reduced to writing, the plan document together with all amendmentsand an accurate description of each unwritten Plan; (ii) where each trust agreement, insurance contract or other funding arrangement related to the Benefit Plan has not been reduced to writingPlans, a written summary of all material plan terms; if applicable, (iii) where each summary plan description and summary of material modifications with respect to the Plans, if applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of the most recent actuarial and financial reports (audited and/or unaudited) and the four (4) most recent annual reports, IRS Form 5500 filed with any summary plan descriptionsGovernmental Authority with respect to the Plans, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of the most recently received IRS determination letter for each such Plan, if applicable, (vi) all material noticescorrespondence with all Governmental Authorities with respect to said Plans in the Company’s or Parent’s possession, letters (vii) all material internal memoranda and professional opinions received with respect to said Plans in the Company’s or Parent’s possession, and (viii) all Contracts with third-party administrators, actuaries, investment managers, consultants and other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating independent contractors that relate to the Benefit any Plan.
(c) Neither None of the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term Plans is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 302 of ERISA or Section 430 412 of the Code and neither the Company nor the Company Subsidiary nor any ERISA Affiliate maintain or Section 302 during the preceding six (6) years maintained, any defined benefit plan or Section 303 any other plan subject to Title IV of ERISA. The Neither the Company has not participated in nor the Company Subsidiary nor any union-sponsored multiemployer welfare benefit fund maintained pursuant ERISA Affiliate is or was during the preceding six (6) years obligated to contribute to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple multi-employer welfare arrangement” plan (as defined in Section 3(403(37) of ERISA).
(d) Each Benefit Plan is now and always has been operated in all material respects in accordance with the requirements of all applicable Law, including, without limitation, ERISA and the Code and each such Plan has been established, administered and maintained materially in accordance material compliance with its terms terms. No Action is pending or threatened with respect to any Plan (other than claims for benefits in the ordinary course) and in compliance with all applicable Laws (including ERISA and the Code)no fact or event exists that could give rise to any such Action.
(e) Nothing Each Plan that is intended to be qualified under Section 401(a) of the Code either (i) has occurred received a favorable determination letter from the Internal Revenue Service covering the laws referred to as “GUST” (through and including the Community Renewal Tax Reduction Act of 2000), or (ii) with respect to any Benefit Plan that is a standardized prototype plan, has subjected received a favorable opinion letter from the Internal Revenue Service covering GUST, and to the Company’s Knowledge, there are no circumstances that will or could reasonably result in revocation of any such favorable determination letter or opinion letter. Each trust created under any Plan has been determined to be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty exempt from taxation under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H 501(a) of the Code, and to the Company’s Knowledge, there are no circumstances that will or could result in a revocation of such exemption.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books None of the Company andnor the Company Subsidiary nor any fiduciary of a Plan has engaged in a transaction with respect to any Plan that, to assuming the extent required by GAAP, adequate reserves are reflected on the financial statements taxable period of such transaction expired as of the date hereof, could subject the Company for such amountsor the Company Subsidiary to a Tax or penalty imposed by either Section 4975 of the Code or Section 502(l) of ERISA or a violation of Section 406 of ERISA. All premiums required There has been no prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to be paid for each insurance policy funding all any Plan. No act or omission has occurred and no condition exists with respect to any Plan that would subject the Company or the Company Subsidiary or any portion ERISA Affiliate to (i) any material fine, penalty, Tax or Liability of any kind imposed under ERISA or the benefits under Code, or (ii) any Benefit Plan have been timely paid in full. All benefits accrued under contractual indemnification or contribution obligation protecting any unfunded Benefit Plan have been paidfiduciary, accrued insurer or otherwise adequately reserved service provider with respect to the extent required by, and in accordance with, GAAPany Plan.
(g) All reports Full payment has been made of all amounts that are required under the terms of each Plan to be paid as contributions, premiums or payments with respect to all periods prior to and disclosures relating including the last day of the most recent fiscal year of such Plan ended on or before the date of this Agreement and all periods thereafter prior to the Benefit Plans required to be filed with Closing Date. All such contributions have been fully deducted for income tax purposes and no such deduction has been challenged or furnished to a disallowed by any Governmental Authority and no fact or plan participants event exists which could give rise to any such challenge or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerdisallowance.
(h) There exists no condition that would subject None of the Company Plans provides for the payment of separation, severance, termination or similar-type benefits to any Liability under the terms of the Benefit Plans Person or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, obligates the Company or the Company Subsidiary to pay separation, severance, termination or similar-type benefits solely as a result of any transaction contemplated by this Agreement or as a result of their Affiliates other than ordinary administrative expenses typically incurred a “change in a termination eventcontrol” of the ownership of equity interests of the Company or the Company Subsidiary. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or will not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding vesting or vesting, the time of payment or increase the amount of compensation (including stock-based compensation) and other benefits due to any such individual; (iii) limit director, employee, officer, former employee or restrict the right former officer of the Company or the Company Subsidiary. There are no Contracts providing for payments that could subject the Company or the Company Subsidiary to mergeLiability for Tax under Section 4999 of the Code.
(i) Except for continuation coverage requirements of Section 4980B of the Code, amend coverage mandated by Part 6 of Subtitle B of Title I of ERISA or terminate any Benefit Plan; comparable state law (iv“COBRA”), none of the Company or the Company Subsidiary has any obligations or potential Liability for compensation (or other benefits) increase the amount payable under for medical, disability or result in any other material obligation pursuant life insurance benefits to any Benefit current or former employee, officer or director of the Company or the Company Subsidiary following termination of employment.
(j) Section 4.19(j) of the Disclosure Schedule identifies each nonqualified deferred compensation plan, within the meaning of Section 409A(d)(1) of the Code and associated Treasury Department guidance, including IRS Notice 2005-1 and Proposed Treasury Regulations at 70 Fed. Reg. 57930 (October 4, 2005) in connection with which the Company or the Company Subsidiary may have any Liability with respect to current or former employees and directors (each a “NQDC Plan; ”). With respect to each NQDC Plan, it either (vi) result has been operated in full compliance with Code Section 409A since January 1, 2005, or (ii) does not provide for the payment of any benefits that have or will be deferred or vested after December 31, 2004, and since October 3, 2004, it has not been “excess parachute paymentsmaterially modified” within the meaning of Section 280G(b409A of the Code and associated Treasury Department guidance, including IRS Notice 2005-1, Q&A 18 and the proposed regulations at 70 Fed. Reg. 57930 (October 4, 2005). No NQDC Plan has assets set aside directly or indirectly in the manner described in Section 409A(b)(1) of the Code; Code or (vi) require contains a “gross-up” or other payment provision that would be subject to any “disqualified individual” within the meaning of Section 280G(c409A(b)(2) of the Code.
(nk) All Options have been duly authorized by None of the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by or the Company BoardSubsidiary has any express or implied commitment, nor whether legally enforceable or not, (i) to create, incur Liability with respect to or cause to exist any other employee benefit plan, program or arrangement, (ii) to enter into any Contract to provide compensation or benefits to any individual or (iii) to modify, change or terminate any Plan, other than with respect to a modification, change or termination required under any applicable legislation or regulation or by ERISA or the Code, as the case may be.
(l) No System Employee has the exercise price of any accrued unused vacation and sick time that exceeds twice such Option been determined retroactivelyemployee’s annual eligibility.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aSchedule 4.18(a) of the Disclosure Schedules contains a true and complete list of each “lists all employee benefit plan” plans (as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreementpension, programbenefit, plan or arrangementretirement, includingcompensation, without limitationemployment, each bonus planconsulting, profit-sharing, deferred compensation plancompensation, supplemental retirementincentive, incentive compensation or retention planbonus, equity purchase plan, equity option plan, equity appreciation right planperformance award, phantom equity planequity, vacation policy stock or planstock-based, severance pay planchange in control, disability planretention, death benefit planseverance, cafeteria plan, employee assistance programvacation, paid time off policyoff, employment agreementwelfare, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement fringe-benefit and other similar plansagreement, programsplan, agreementspolicy, arrangements program or understandingsarrangement (and any amendments thereto), in each such casecase whether or not reduced to writing and whether funded or unfunded, that whether or not tax-qualified and whether or not subject to ERISA, which is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been or required to contribute tobe contributed to by any Seller for the benefit of any current or former employee, officer, director, retiree, temporary employee, leased employee, Individual Contractor or consultant of the Business or any spouse or dependent of such individual, or had under which any Liability with respect toSeller has or may have any Liability, any contingent or otherwise (as listed on Schedule 4.18(a), each, a “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the CodeSeller Benefit Plan”).
(b) With respect to each Seller Benefit Plan, the Company has made Sellers have provided to Buyer, to the extent available prior to Parent accuratethe date hereof, a current and complete copies of each of the followingcopy of: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Seller Benefit Plan has is not been required by Law to be reduced to writing, a written summary of all material plan terms; (iii) where trust agreements or other funding arrangements, (if applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise); (iv) copies of any summary plan descriptionsdescriptions and employee handbooks; (v) the most recently filed Form 5500 including attached schedules (if applicable); (vi) the most recent determination, summaries opinion or advisory letter from the Internal Revenue Service for each Seller Benefit Plan that is intended to be qualified under Section 401(a) of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications the Code (or a description of any oral communications) relating to any “Qualified Benefit Plan”); (vii) the most recently prepared actuarial valuation and report (if applicable); and (vviii) copies of material notices, letters or other correspondence with respect to a Seller Benefit Plan from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other a Governmental Authority relating to the Benefit PlanAuthority.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Seller Benefit Plan and related trust has been established, administered and maintained materially in accordance with its terms and in material compliance with all applicable Laws (including ERISA but not limited to ERISA, and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or . There are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no Actions pending or, to the Company’s Sellers’ Knowledge, threatened Action relating by any Governmental Authority with respect to a Seller Benefit Plan (other than routine claims for benefits). All benefits, contributions and no premiums relating to each Seller Benefit Plan have been timely paid in accordance with the terms of such Seller Benefit Plan and all applicable Laws. No event has been occurred regarding any Qualified Benefit Plan that is reasonably likely to result in the subject loss of an examination or audit by a Governmental Authority qualification of such Seller Benefit Plan under Section 401(a) of the Code or the subject exempt status of an application or filing any trust under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental AuthoritySection 501(a) of the Code.
(kd) There No Seller Benefit Plan, to which the Sellers, or any ERISA Affiliate thereof, has ever maintained, contributed to, been required to contribute to, or has or had any liability with respect to: (i) is or has been subject to Title IV of ERISA, Sections 412, 430, 431, 432 or 436 of the Code or Sections 302, 303, 304 or 305 of ERISA; (ii) is or was a “multiemployer plan” under Section 3(37) of ERISA (“Multiemployer Plan”); (iii) is or was a “multiple employer plan” under Section 413(c) of the Code; or (iv) is or was a “multiple employer welfare arrangement” under Section 3(40) of ERISA.
(e) Other than as required under Section 601 et seq. of ERISA or other applicable Law, no amendment toSeller Benefit Plan or other arrangement provides post-termination or retiree welfare benefits to any individual for any reason.
(f) Except as set forth on Schedule 4.18(f), announcement by the Company or no Seller, nor any of its Affiliates relating toAffiliates, has made any commitment, other than in the ordinary course of business: (i) to create or change in employee participation incur liability with respect to or coverage undercause to exist, any employee benefit plan; (ii) to enter into a contract or agreement to provide compensation or benefits to any individual; or (iii) to modify, change or terminate any Seller Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year Plan, other than with respect to a modification, change or termination required by applicable Law.
(g) Nothing has occurred with respect to any director, officer, employee, independent contractor Seller Benefit Plan that could constitute a prohibited transaction within the meaning of Section 406 of ERISA or consultant, as applicableSection 4975 of the Code.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(mh) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company Business to severance pay or any other payment, benefit or notice; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Seller Benefit Plan; (viv) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (viv) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a3.18(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity or other equity, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by the Company for the benefit of any current or former employee, officer, manager, retiree, independent contractor or consultant of the Company or any spouse or dependent of such individual, or under which the Company or any of its ERISA Affiliates has or may have any Liability, or with respect to which the Company has Buyer or may any of its Affiliates would reasonably be expected to have any Liability Liability, contingent or otherwise (as listed on Section 3.18(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Form 5500, with schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, Except as such term is defined set forth in Sections 3(37) or 4001(a)(3Section 3.18(c) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Disclosure Schedules, each Benefit Plan and related trust has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code and any applicable local Laws). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a “Qualified Benefit Plan”) is so qualified and has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) , and nothing has occurred that is reasonably likely to adversely affect the qualified status of any Qualified Benefit Plan. Nothing has occurred with respect to any Benefit Plan that has subjected or could is reasonably be expected likely to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f. Except as set forth in Section 3.18(c) With respect of the Disclosure Schedules, all benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAPwith the Accounting Methods.
(gd) All reports and disclosures Neither the Company nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Plans required Guaranty Corporation; (iii) withdrawn from any Benefit Plan; or (iv) engaged in any transaction which would give rise to be filed with liability under Section 4069 or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerSection 4212(c) of ERISA.
(he) There exists With respect to each Benefit Plan (i) no condition that would such plan is a Multiemployer Plan; (ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA, and none of the assets of the Company or any ERISA Affiliate is, or may reasonable be expected to become, the subject of any lien arising under Section 302 of ERISA or Section 412(a) of the Code; and (v) no “reportable event,” as defined in Section 4043 of ERISA, has occurred with respect to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. such plan.
(f) Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to ParentBuyer, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, directormanager, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(ig) Other Except as set forth in Section 3.18(g) of the Disclosure Schedules and other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health welfare benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health welfare benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jh) There Except as set forth in Section 3.18(h) of the Disclosure Schedules, there is no pending or, to the Company’s Sellers’ Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three (3) years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(ki) There has been no amendment to, announcement by Sellers, the Company or any of its their Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any directormanager, officer, employee, independent contractor or consultant, as applicable.
(l) Neither . None of Sellers, the Company Company, nor any of its their Affiliates has any commitment or obligation or has made any representations to any directormanager, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement.
(j) Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. The Company does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(k) Each individual who is classified by the Company as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.
(ml) Neither Except as set forth in Section 3.18(l) of the Disclosure Schedules, neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former directormanager, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Legend Oil & Gas, Ltd.)
Employee Benefit Matters. (a) Section 3.20(aSchedule 5.12(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) material deferred compensation and each other benefit agreementincentive or equity compensation plan, program, plan agreement or arrangement; each severance or termination pay, includingmedical, without limitationsurgical, each bonus hospitalization, life insurance and other welfare plan, deferred compensation fund or program (within the meaning of Section 3(1) of ERISA); each profit-sharing, stock bonus or other pension plan, supplemental retirement, incentive compensation fund or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability program (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA); and each other material employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by Seller or by any trade or business, whether or not subject to ERISAincorporated, that together with Seller would be deemed a single employer within the meaning of Section 4001(b) of ERISA (an “ERISA Affiliate”), in each case for the benefit of any Employee or any plan Former Employee (the “Employee Plans”). Seller’s Pension Plans and Seller’s 401(k) Plan are the only Employee Plans that are intended to qualify be qualified under Section 401(a) of the CodeIRC. Other than Employees and Former Employees of the Business (and their applicable beneficiaries), no individuals participate in or are otherwise entitled to receive benefits from Seller’s Pension Plans. Each Employee Plan that is subject to Section 302 or Title IV of ERISA or Sections 412 and 430 of the IRC is hereinafter referred to as a “Title IV Plan.” Other than as specifically set forth in the Employee Agreement, Buyer shall have no liability with respect to any Employee Plan of Seller or any of its Affiliates.
(b) With respect to each Benefit Employee Plan, the Company Seller has made available heretofore delivered to Parent accurate, current Buyer true and complete copies of each of the following: Employee Plan and any amendments thereto (i) where or if the Benefit Employee Plan has been reduced to writingis not a written Employee Plan, a description thereof), any related trust or other funding vehicle documents, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writingmost recent actuarial valuation reports, a written summary of all material plan terms; (iii) where annual reports, Forms 5500 and asset statements, in each case, as applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits descriptions required under ERISA or the IRC and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence the most recent determination letter received from the Internal Revenue Service, Department IRS with respect to each Employee Plan intended to qualify under Section 401 of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit PlanIRC.
(c) Neither As of the Company nor date hereof, no liability under Section 302 or Title IV of ERISA has been incurred by Seller or any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect toto Seller’s Pension Plans that has not been satisfied in full, either other than liability for premiums due the Pension Benefit Guaranty Corporation (i“PBGC”) a multiemployer plan(which premiums have been paid when due). Except as set forth on Schedule 5.12(c), since May 1, 2010 to the date of this Agreement, there has been no “reportable event” (as such term is defined in Sections 3(37Section 4043 of ERISA) in connection with any of Seller’s Pension Plans other than reportable events for which notice is waived under applicable regulations.
(d) Except as set forth on Schedule 5.12(d), all contributions, premiums or 4001(a)(3payments required to be made by Seller or any of its ERISA Affiliates with respect to any Employee Plan prior to the Closing Date have been timely made prior to the Closing Date or, if not yet due, have been reflected in the Financial Statements in accordance with GAAP, and will be reflected in the Carve-Out Financials in accordance with GAAP when delivered.
(e) of No Title IV Plan that is maintained or contributed to by Seller or its ERISA Affiliates and for which Buyer could, directly or (ii) an employee pension benefit plan (indirectly, reasonably be expected to have liability, is or has been a multiemployer plan, as defined in Section 3(23(37) of ERISA) that , nor is or was subject to any Title IV of ERISA or Plan a plan described in Section 412 or Section 430 of the Code or Section 302 or Section 303 4063(a) of ERISA. The Company Neither Seller nor any ERISA Affiliate has not participated made or suffered a complete withdrawal or a partial withdrawal, as determined under Sections 4203 and 4205 of ERISA (or any liability resulting therefrom has been satisfied in full). With respect to each Title IV Plan, as of the date of this Agreement, there has been no material change in the financial condition of any union-sponsored multiemployer welfare benefit fund maintained such Title IV Plan since the last day of its most recently completed fiscal year.
(f) None of Seller, any Employee Plan, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Seller or any Employee Plan could be subject to either a material penalty assessed pursuant to any “employee welfare benefit plan” as defined in Section 3(1409 or 502(i) of ERISA or a “multiple employer welfare arrangement” (as defined in material tax imposed pursuant to Section 3(40) 4975 or 4976 of ERISA)the IRC.
(dg) Each Benefit Employee Plan has been established, operated and administered and maintained materially (including with respect to required contributions thereunder) in all material respects in accordance with its terms and in compliance with all applicable Laws (law, including but not limited to ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerIRC.
(h) There exists no condition Each Employee Plan intended to be qualified under Section 401(a) of the IRC is so qualified and has received a favorable determination or opinion letter as to its qualification. To the Knowledge of Seller, nothing has occurred since the date of determination of such qualification and exemption that would subject reasonably be expected to materially adversely affect the Company qualified or exempt status of such Employee Plan or trust. Each Employee Plan intended to any Liability under satisfy the terms requirements of Section 501(c)(9) of the Benefit Plans or applicable Law relating thereto other than any payment of benefits IRC has satisfied such requirements in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without all material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwiserespects.
(i) Other Except as disclosed in Schedule 5.12(i)(A), no Employee Plan provides medical, surgical, hospitalization, death or similar benefits coverage (whether or not insured) for Employees or Former Employees for periods extending beyond their retirement or other termination of service, other than as required (A) coverage mandated by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act IRC, Section 601 et seq of 1985, as amendedERISA, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any comparable provisions of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.state law,
Appears in 1 contract
Samples: Purchase and Sale Agreement
Employee Benefit Matters. (a) Section 3.20(aSections 3.23(a) and 3.23(e) of the Deltek Disclosure Schedules contains a true and complete Schedule list of each “all employee benefit plan” plans (as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreementall bonus, programstock option, plan or arrangementstock purchase, includingprofit sharing, without limitationsavings, each bonus plandisability, incentive, deferred compensation plancompensation, supplemental retirement, incentive severance or other employee benefit plans or programs and all employment or compensation agreements (i) currently maintained for the benefit of, or retention planrelating to, equity purchase plancurrent employees and former employees of Deltek, equity option planany ERISA Affiliate, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement any Subsidiary or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect (ii) pursuant to which the Company Deltek, any ERISA Affiliate or any Subsidiary has or may have any Liability but excepting the Executive Severance Agreements, the Conversion SAR Amendments, the SAR Amendments and the Severance Agreements (eachindividually, a “Benefit Plan”, collectively, the “Plans”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company Deltek has made available to Parent accurate, current Buyers true and complete copies of each of the followingof: (i) where the Benefit all material Plan has been reduced to writing, the plan document together with all amendmentsdocuments; (ii) where the Benefit Plan has if applicable, all funding and administrative arrangement documents, including, but not been reduced to writinglimited to, a written summary of all material plan termstrust agreements, insurance contracts, custodial agreements, investment manager agreements, and service agreements; (iii) where if applicable, copies the latest favorable determination letter received from the IRS regarding the qualification of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result each Plan covered by Section 401(a) of the transactions contemplated by this Agreement or otherwiseCode; (iv) copies of any summary plan descriptionsif applicable, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term most recently filed Form 5500 for each Plan that is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) and for each Plan that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “an employee welfare benefit plan” plan (as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (v) if applicable, each summary plan description and each summary material modification regarding the terms and provisions thereof; (vi) if applicable, the most recent actuarial report; and (vii) if applicable, any material communication with any Governmental Authority. Deltek has made available to Buyers true and complete copies of each Executive Severance Agreement, Conversion SAR Amendment, SAR Amendment and Severance Agreement and all amendments and other material agreements related to the foregoing.
(dc) Each Benefit Plan has been establishedand each Executive Severance Agreement, administered Conversion SAR Amendment, SAR Amendment and maintained materially in accordance with its terms and Severance Agreement (i) is in compliance in all material respects with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates orgovernmental orders, with respect to any period on or after the Closing Datestatutes, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required byregulations, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to rules issued by a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(hii) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA its terms.
(d) No employees of Deltek, an ERISA Affiliate, or a Subsidiary currently participate or ever have participated in any multiemployer plan, as defined in Section 3(37) of ERISA or a voluntary employees beneficiary association, as defined in Section 501(c)(9) of the Code.
(e) Except as required by Part 6 of Subtitle B of Title I of ERISA and Code Section 4980B, no Plan or an ERISA Affiliate provides retiree medical or retiree life insurance benefits. Any Plan designed to satisfy the requirements of Section 125, 401(k), and/or 4980B of the Code satisfies such section in all material respects.
(f) Each Plan intended to qualify under Section 401(a) of the Code has been determined to be so qualified by the IRS; and none of such Plans or related trusts, or any administrator or trustee thereof, or party-in-interest or disqualified person thereto has engaged in a transaction that could cause any of them to be liable for a civil penalty under Section 409 or 502(i) or any other similar section of ERISA or result in a tax under Section 4975 or 4976 or any other section of Chapter 43 of Subtitle D of the Code.
(g) Each Plan that is required to be registered or approved by a Governmental Authority has been registered with, or approved by, and has been maintained in accordance with such registration or approval requirements, with such Governmental Authority.
(h) All contributions required to be made with respect to any Plan by applicable Law, any Order, or any Plan document or other contractual undertaking, and all premiums due or payable with respect to any insurance policy funding any Plan have been timely paid in full or, to the extent not required to be made or paid on or before the date hereof, have been accrued in accordance with normal accounting practices and are fully reflected on the financial statements of Deltek and the Subsidiaries.
(i) All amounts required to be reserved under each unfunded Plan have been so reserved in accordance with reasonable accounting practices prevailing in the country where such Plan is maintained.
(j) There To the Knowledge of Deltek, each insurance contract relating to any Plan is no pending orvalid and enforceable and, to the Company’s KnowledgeKnowledge of Deltek, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and there is no Benefit Plan has been ground on which the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authorityinsurer might avoid liability thereunder.
(k) There No Liability under Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code has been no amendment to, announcement or is reasonably expected to be incurred by the Company Deltek or any of its Affiliates relating to, current or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicableformer ERISA Affiliates.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the The execution of this Agreement nor or any of the transactions contemplated by this Agreement other Transaction Documents, and performance of the Contemplated Transactions, will not (either alone or upon the occurrence of any additional or subsequent events): ) (i) entitle except to the extent provided in Section 5.14, constitute an event under any Plan or related agreement, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former director, officer, employee, independent contractor Personnel or consultant of the Company to severance pay or any other payment; (ii) accelerate result in the time of payment, funding triggering or vesting, imposition or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit restrictions or restrict limitations on the right of the Company Deltek or any Subsidiary to merge, amend or terminate any Benefit Plan; Plan (iv) increase the amount payable under or result in any adverse consequence for so doing).
(m) The execution of this Agreement or any of the other material obligation pursuant to Transaction Documents, and performance of the Contemplated Transactions, will not (either alone or upon the occurrence of any Benefit Plan; (vadditional or subsequent events) result in any payment or benefit that will or may be made by Deltek or any Subsidiary that will be characterized as “excess parachute paymentspayment,” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c280G(b)(1) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, profit-sharing, deferred compensation, incentive, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term ”, which is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreementhas been maintained, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by the Company or with respect to Cana Pharmaceuticals for the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Company or Cana Pharmaceuticals or any spouse or dependent of such individual, or under which the Company or Cana Pharmaceuticals has or may have any Liability Liability, or with respect to which Buyer or any of its Affiliates would reasonably be expected to have any Liability, contingent or otherwise (as listed on Section 3.20(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
(b) With respect to each Benefit Plan, the Company has Sellers have made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; and (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA Laws. All benefits, contributions and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(gd) All reports and disclosures Neither the Company nor Cana Pharmaceuticals nor any of its Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability relating to the employee benefit plans; (ii) failed to timely pay premiums; (iii) withdrawn from any Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerPlan.
(he) There exists Except as required by applicable Law, no condition that would subject the Company to provision of any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can or collective bargaining agreement could reasonably be amended, terminated or otherwise discontinued after the Closing expected to result in accordance with its terms, without material liabilities to Parent, the Company any limitation on Buyer or any of their its Affiliates other than ordinary administrative expenses typically incurred in a termination eventfrom amending or terminating any Benefit Plan. The Company has and Cana Pharmaceuticals have no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, amend or modify or terminate any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(if) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health welfare benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health welfare benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jg) There is no pending or, to the Company’s Sellers’ Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kh) There has been no amendment to, announcement by Seller, the Company or Cana Pharmaceuticals or any of its their Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) . Neither the Seller, the Company nor Cana Pharmaceuticals, nor any of its their Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amendamend or modify any Benefit Plan or any collective bargaining agreement.
(i) Each Benefit Plan has been operated in compliance with such section and all applicable regulatory guidance (including notices, modify rulings and proposed and final regulations).
(j) Each individual who is classified by the Company or terminate any Cana Pharmaceuticals as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.
(mk) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company or Cana Pharmaceuticals to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right rights of the Company and Cana Pharmaceuticals to merge, amend or terminate any Benefit Plan; or (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aSchedule 4.24(a) of the Disclosure Schedules contains sets forth a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by Seller for the Company benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Business or any spouse or dependent of such individual, or under which Seller or any of its ERISA Affiliates has or may have any Liability, or with respect to which the Company has Buyer or may any of its Affiliates would reasonably be expected to have any Liability (as set forth on Schedule 4.24(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company Seller has never adopted, entered into, separately identified on Schedule 4.24(a) of the Disclosure Schedules each Benefit Plan that is maintained, sponsored, contributed to, been or required to contribute to, or had any Liability with respect to, any “employee pension be contributed to by Seller primarily for the benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) employees of the CodeBusiness outside of the United States (a “Non-U.S. Benefit Plan”).
(b) With respect to each Benefit Plan, the Company Seller has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Forms 5500, with schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (vix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Neither Except as set forth on Schedule 4.24(c) of the Company nor Disclosure Schedules, each Benefit Plan and related trust (other than any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or each, a “multiple employer welfare arrangement” (as defined in Section 3(40Multiemployer Plan”)) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA ERISA, the Code and any applicable local Laws). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a “Qualified Benefit Plan”) is so qualified and has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code).
(e) , and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company Seller or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, ERISA or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, Section 4975 or 4980H of the Code.
(f) With respect . All benefits, contributions and premiums relating to each Benefit Plan, all payments due from the Company Plan have either been timely made paid in accordance with the terms of such Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP. All Non-U.S. Benefit Plans that are intended to be funded and/or book-reserved are funded and/or book-reserved, as appropriate, based upon reasonable actuarial assumptions.
(gd) All reports and disclosures Neither Seller nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Plans required Guaranty Corporation; (iii) withdrawn from any Benefit Plan; or (iv) engaged in any transaction which would give rise to be filed with Liability under Section 4069 or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerSection 4212(c) of ERISA.
(he) There exists With respect to each Benefit Plan (i) no condition that would such plan is a Multiemployer Plan and Seller has never contributed or been required to contribute to a Multiemployer Plan; (ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan is subject to the Company minimum funding standards of Section 412 of the Code or Title IV of ERISA, and none of the Purchased Assets is, or may reasonably be expected to become, the subject of any lien arising under Section 302 of ERISA or Section 412(a) of the Code. Except as set forth on Schedule 4.23(e) of the Disclosure Schedules, no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA, and no plan listed on Schedule 4.24(e) of the Disclosure Schedules has failed to satisfy the minimum funding standards of Section 302 of ERISA or Section 412 of the Code; and (v) no “reportable event,” as defined in Section 4043 of ERISA, has occurred with respect to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwisesuch plan.
(if) Other than as required by under Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectively, “COBRA”)Law, no Benefit Plan or other arrangement provides post-termination or retiree health welfare benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jg) There is no pending or, to the CompanySeller’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the six (6) years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kh) There has been no amendment to, announcement by the Company Seller or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, consultant or independent contractor or consultantof the Business, as applicable.
(l) . Neither the Company Seller nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, consultant or independent contractor or consultantof the Business, whether or not legally binding, to adopt, amend, modify or terminate any Benefit PlanPlan or any collective bargaining agreement.
(mi) Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings and proposed and final regulations) thereunder. Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(j) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company Business to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (viv) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (viv) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
. Seller has made available to Buyer true and complete copies of any Section 280G calculations prepared (nwhether or not final) All Options have been duly authorized by the Company Board with respect to any disqualified individual in compliance connection with the terms of the Stock Option Plan. No Options have been retroactively granted transactions contemplated by the Company Board, nor has the exercise price of any such Option been determined retroactivelythis Agreement.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a3.16(a) of the Company Disclosure Schedules contains a true Schedule sets forth an accurate and complete list of all Company Plans.
(b) The Company has made available to the Purchaser an accurate and complete copy of (i) each Company Plan, including plan documents, plan amendments, any related trusts and summary plan descriptions and each other material writings, summaries or descriptions provided to participants or beneficiaries that are inconsistent with the terms of each Company Plan , (ii) all personnel, payroll and employment manuals and policies of the Company, (iii) a written description of any Company Plan that is not otherwise in writing, (iv) all insurance policies purchased by or to provide benefits under any Company Plan, (v) the Form 5500 filed in each of the most recent three plan years with respect to each Company Plan, including all schedules thereto, financial statements and the opinions of independent accountants, (vi) all notices that were given by the Company or Subsidiary with respect to any Company Plan to the IRS, the United States Department of Labor (the “employee benefit DOL”) since January 1, 2007, (vii) all notices that were given by the IRS or the DOL to any Company Plan, the Company or any Subsidiary with respect to any Company Plan since January 1, 2007, (viii) with respect to any Company Plan that is a pension plan” , as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Pension Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required that meets or purports to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within meet the meaning requirements of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.
Code (ba “Qualified Plan”) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (vix) copies of material notices, letters the most recent determination or other correspondence from prototype opinion letter issued by the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit IRS for each such Company Plan.
(c) Neither Except as listed under Section 3.16(c) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate Subsidiary maintains, contributes to or has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability (including any Liability attributable to any ERISA Affiliate) with respect to, either to any (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(23(37)(A) of ERISAERISA (a “Multiemployer Plan”), (ii) that is or was Pension Plan subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or (a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Title IV Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; a single employer pension plan (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b4001(a)(15) of ERISA) for which the Company or any ERISA Affiliate would incur liability under Section 4063 or 4064 of ERISA (a “Multiple Employer Plan”), (iv) voluntary employees’ beneficiary association under Section 501(c)(9) of the Code; , (v) organization or (vitrust described in Section 501(c)(17) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c501(c)(20) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.,
Appears in 1 contract
Samples: Merger Agreement
Employee Benefit Matters. (a) Section 3.20(a3.8(a) of the Company Disclosure Schedules contains a true and complete list of each “Schedule lists any employee benefit plan” , program, policy, practice, or other arrangement, agreement or understanding providing benefits to any current or former employee, officer or director of the Company or any of its subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by the Company or any of its subsidiaries or to which the Company or any of its subsidiaries contributes or is obligated to contribute, whether or not written, including without limitation any employee welfare benefit plan within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as that term is defined in amended ("ERISA"), any employee pension benefit plan within the meaning of Section 3(33(2) ----- of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement), programany bonus, plan or arrangement, including, without limitation, each bonus planincentive, deferred compensation plancompensation, supplemental retirementvacation, incentive compensation stock purchase, stock option, severance, employment, change of control or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death fringe benefit plan, cafeteria plan, employee assistance program, paid time off program or policy, employment agreementand any contract, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute offer letter or agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by of the Company or any of its subsidiaries with respect or addressed to any individual who is rendering or has rendered services thereto as an employee or consultant pursuant to which the Company or any of its subsidiaries has any actual or may have any Liability contingent liability or obligation to provide compensation and/or benefits in consideration for past, present or future services (each, a “the "Employee Benefit Plan”Plans"). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Code.----------------------
(b) With respect to each Employee Benefit Plan, the Company has made available delivered to Parent accuratea true, current correct and complete copies of each of the followingcopy of: (i) where the Benefit Plan has been reduced to writingeach writing constituting a part of such Plan, the including without limitation all plan document together with all amendmentsdocuments, trust agreements, and insurance contracts and other funding vehicles; (ii) where the Benefit Plan has not been reduced to writingmost recent Annual Report (Form 5500 Series) and accompanying schedule, a written summary of all material plan termsif any; (iii) where applicablethe current summary plan description and any material modifications thereto, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwiseif any; (iv) copies of any summary plan descriptionsthe most recent annual financial report, summaries of material modificationsif any; (v) the most recent actuarial report, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Planif any; and (vvi) copies of material notices, letters or other correspondence the most recent determination letter from the Internal Revenue Service, Department of Laborif any. Except as specifically provided in the foregoing documents delivered to Parent, Department of Health and Human Services, there are no amendments to any Plan that has been adopted or other Governmental Authority relating to the Benefit Planapproved.
(c) Neither Except as discussed in Section 3.8(c) of the Company nor any ERISA Affiliate has ever maintainedDisclosure Schedule, contributed (i) all Employee Benefit Plans are in compliance with and have been administered in compliance with all applicable requirements of law, including, but not limited to, had the Code and ERISA (except with respect to the Employee Benefit Plans offered exclusively in Canada), if applicable, and have been operated in accordance with their terms, and all contributions required to be made to each such plan under the terms of such plan, ERISA or the Code, as applicable, for any period through the date hereof have been timely paid or made in full and through the Effective Time will be timely paid or made in full; (ii) no nonexempt "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA) has occurred with respect to any Employee Benefit Plan which would reasonably be expected to subject any Employee Benefit Plan (or its related trust), the Company or any subsidiary or any person the Company or its subsidiaries has an obligation to indemnify, to a tax or penalty imposed under Section 4975 of the Code or Section 502 or ERISA; (iii) none of the Company, its subsidiaries or any entity, trade or business that is considered one employer with the Company or any of its subsidiaries under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code (an "ERISA Affiliate") is required to --------------- contribute to, or during the five-year period ending on the Effective Time will have been required to contribute to, or incurred could have any Liability with respect toliability under, either (i) a any "multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan " (as defined in Section 3(23(37) of ERISA); (iv) each Employee Benefit Plan which is not maintained in the United States is funded and/or book reserved for in accordance with applicable laws and reasonable accounting assumptions; and (v) there is no pending or, to the Company's knowledge, threatened legal action, suit or claim relating to any current or former employee of the Company or its subsidiaries or any Employee Benefit Plan other than routine claims for benefits that could not reasonably be expected to result in any material liability to the Company or its subsidiaries or any person the Company or its subsidiaries has an obligation to indemnify.
(d) Section 3.8(d) of the Company Disclosure Schedule identifies each Employee Benefit Plan that is intended to be a "qualified plan" within the meaning of Section 401(a) of the Code ("Qualified Plans"). The Internal Revenue --------------- Service has issued a favorable determination letter with respect to each Qualified Plan and the related trust that has not been revoked, and, to the Company's knowledge, there are no existing circumstances and no events have occurred that could adversely affect the qualified status of any Qualified Plan or was the related trust.
(e) No Employee Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H 4971 of the Code.
(f) With respect The Company and its subsidiaries have no liability for life, health, medical or other welfare benefits to each Benefit Planformer employees or beneficiaries or dependents thereof, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded except for health continuation coverage as liabilities on the books required by Section 4980B of the Code or Part 6 of Title I of ERISA or other applicable laws. The Company andand each of its subsidiaries has reserved the right to amend, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company terminate or modify at any time all plans or arrangements providing for such amounts. All premiums required to be paid for each retiree health or life insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAPcoverage.
(g) All reports No labor organization or group of employees of the Company or any of its subsidiaries has made a pending demand for recognition or certification, and disclosures relating there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or, to the Benefit Plans required Company's knowledge, threatened to be filed brought or filed, with the National Labor Relations Board or furnished any other labor relations tribunal or authority. There are no organizing activities, strikes, work stoppages, slowdowns, lockouts, material arbitrations or material grievances, or other material labor disputes pending or, to a Governmental Authority the Company's knowledge, threatened against or plan participants involving the Company or beneficiaries have been prepared any of its subsidiaries. Each of the Company and its subsidiaries is in accordance compliance with all applicable Law laws and filed or furnished in accordance with applicable Law in a timely mannercollective bargaining agreements respecting employment and employment practices, terms and conditions of employment, wages and hours and occupational safety and health.
(h) There exists no condition that would subject the Company Each individual who renders services to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The its subsidiaries who is classified by the Company has no commitment or obligation and has not made any representations to any employeesuch subsidiary, officeras applicable, director, as having the status of an independent contractor or consultantother non-employee status for any purpose (including for purposes of taxation and tax reporting and under Employee Benefit Plans) is properly so characterized, whether or except as would not legally binding, be reasonably expected to adopt, amend, modify or terminate any Benefit Plan in connection with have a Material Adverse Effect on the consummation of the transactions contemplated by this Agreement or otherwiseCompany.
(i) Other than as required by contemplated in Section 601 et. seq. of ERISA, 1.9 hereof and Section 4980B 3.8(i) of the Code and Company Disclosure Schedule, the Consolidated Omnibus Budget Reconciliation Act Transactions will not, separately or in the aggregate, constitute a "change of 1985control" under, as amendedrequire the consent from or the giving of notice to a third party pursuant to, or other applicable Law (collectivelyaccelerate vesting, “COBRA”)funding or repurchase rights under the terms, no conditions or provisions of any Employee Benefit Plan provides post-termination or retiree health benefits to any individual for any reasonPlan. Except as set forth in Section 3.8(i) of the Company Disclosure Schedule, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits subsidiaries is a party to any individual agreement, contract or ever representedarrangement that could result, promised on account of the Transactions, separately or contracted to in the aggregate (including upon any individual that such individual would be provided with post-subsequent termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefitsof employment), and no Benefit Plan has been in the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence payment of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” payments within the meaning of Section 280G(b280G of the Code or any payment that would be nondeductible under Section 162(m) of the Code; . No such agreement, contract or arrangement provides for the reimbursement of excise taxes under Section 4999 of the Code or any income taxes under the Code. The total amounts payable to the employees and consultants of the Company, as set forth in Section 3.8(i) of the Company Disclosure Schedule, as a result of the Transactions contemplated by this Agreement and/or any subsequent employment termination (vi) require a “excluding any cash-out or acceleration of options and restricted stock but including any "gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) " payments with respect thereto), based on compensation data applicable as of the Codedate hereof, calculated assuming effective Federal tax rates of 39.6%, will not exceed the amount set forth on such Schedule.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Samples: Merger Agreement (Ingenico S A)
Employee Benefit Matters. (a) Section 3.20(aSchedule 5.13(a) of the Disclosure Schedules contains a true and complete list of each deferred compensation and each incentive compensation, stock purchase, stock option and other equity compensation plan, program, agreement or arrangement; each severance or termination pay, medical, surgical, hospitalization, life insurance and other “welfare” plan, fund or program (within the meaning of section 3(1) of ERISA); each profit-sharing, stock bonus or other “pension” plan, fund or program (within the meaning of section 3(2) of ERISA); each employment, termination or severance agreement; and each other employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, fund, program, plan agreement or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered maintained or contributed to or required to be contributed to by the Company Seller or by any trade or business, whether or not incorporated (an “ERISA Affiliate”), that together with respect to which the Company has or may have any Liability (each, Seller would be deemed a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plansingle employer” within the meaning of Section 3(2section 4001(b) of ERISA, whether or not subject to ERISA, which the Seller or an ERISA Affiliate is party for the benefit of any plan Employee or Former Employee of the Seller (the “Employee Plans”). Seller’s Pension Plans and Seller’s 401(k) Plan are the only Employee Plans that are intended to qualify be qualified under Section 401(a) of the CodeIRC. Each employee benefit plan (within the meaning of Section 3(3) of ERISA) that is sponsored, maintained or contributed to or required to be contributed to by Seller or an ERISA Affiliate of Seller and that is subject to Section 302 or Title IV of ERISA or section 412 of the IRC is hereinafter referred to as a “Title IV Plan.”
(b) With respect to each Benefit Employee Plan, the Company Seller has made available heretofore delivered to Parent accurate, current Buyer true and complete copies of each of the following: Employee Plan and any amendments thereto (i) where or if the Benefit Employee Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has is not been reduced to writinga written Employee Plan, a written summary of all material plan terms; (iii) where applicabledescription thereof), copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters related trust or other correspondence funding vehicle, any reports or summaries required under ERISA or the IRC and the most recent determination letter received from the Internal Revenue Service, Department Service with respect to each Employee Plan intended to qualify under section 401 of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit PlanIRC.
(c) Neither No liability under Title IV or section 302 of ERISA has been incurred by the Company nor Seller or any ERISA Affiliate that has ever maintainednot been satisfied in full, contributed toand no condition exists that presents a material risk to the Seller or any ERISA Affiliate of incurring any such liability, had an obligation other than liability for premiums due the Pension Benefit Guaranty Corporation (“PBGC”) (which premiums have been paid when due). Insofar as the representation made in this Section 5.13(c) applies to contribute tosections 4064, 4069 or incurred any Liability 4204 of Title IV of ERISA, it is made with respect to, either (i) a multiemployer to any employee benefit plan, as such term is defined in Sections 3(37) program, agreement or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was arrangement subject to Title IV of ERISA to which the Seller or Section 412 any ERISA Affiliate made, or Section 430 was required to make, contributions during the five (5)-year period ending on the last day of the Code or Section 302 or Section 303 of ERISA. most recent plan year ended prior to the Closing Date.
(d) The Company PBGC has not participated instituted proceedings to terminate any Title IV Plan and no condition exists that presents a material risk that such proceedings will be instituted.
(e) No Title IV Plan or any trust established thereunder has incurred any “accumulated funding deficiency” (as defined in any union-sponsored multiemployer welfare benefit fund maintained pursuant section 302 of ERISA and section 412 of the IRC), whether or not waived, as of the last day of the most recent fiscal year of each Title IV Plan ended prior to the Closing Date. All contributions required to be made with respect to any Employee Plan on or prior to the Closing Date have been timely made.
(f) No Title IV Plan is a “employee welfare benefit multiemployer pension plan,” as defined in Section 3(1section 3(37) of ERISA, nor is any Title IV Plan a plan described in section 4063(a) of ERISA. Neither the Seller nor any ERISA Affiliate has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in sections 4203 and 4205 of ERISA (or any liability resulting therefrom has been satisfied in full).
(g) Neither the Seller or any Subsidiary, any Employee Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection with which the Seller or any Subsidiary, any Employee Plan, any such trust, or any trustee or administrator thereof, or any party dealing with any Employee Plan or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) tax imposed pursuant to section 4975 or 4976 of ERISA)the IRC.
(dh) Each Benefit Employee Plan has been established, operated and administered and maintained materially in all material respects in accordance with its terms and in compliance with all applicable Laws (law, including but not limited to ERISA and the CodeIRC.
(i) Each Employee Plan intended to be “qualified” within the meaning of section 401(a) of the IRC is so qualified and the trusts maintained thereunder are exempt from taxation under section 501(a) of the IRC. Each Employee Plan intended to satisfy the requirements of Section 501(c)(9) has satisfied such requirements.
(j) Except as disclosed in Schedule 5.13(j), no Employee Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for Employees or Former Employees of the Seller or any Subsidiary for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by applicable law, (ii) death benefits under any “pension plan,” or (iii) benefits the full cost of which is borne by the Employee or Former Employee (or his beneficiary).
(ek) Nothing has occurred with respect No amounts payable under the Employee Plans will fail to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any deductible for federal income tax purposes by virtue of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D section 280G of the Code or Sections 6652, 4975 or 4980H of the CodeIRC.
(fl) With respect to each Benefit PlanExcept as disclosed in Schedule 5.13(l), all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement will not, either alone or otherwisein combination with another event, (i) entitle any Employee, Former Employee or officer of the Seller or any Subsidiary to severance pay or any other payment, except as expressly provided in this Agreement, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such Employee, Former Employee or officer.
(im) Other than as required There are no pending, threatened or anticipated claims by Section 601 et. seq. or on behalf of ERISAany Employee Plan, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amendedby any employee or beneficiary covered under any such Employee Plan, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to otherwise involving any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Employee Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board The Subsidiaries do not employ any Employees or any other individuals and do not currently maintain any Employee Plan.
(o) The only representations and warranties given in compliance with the terms respect of employee benefit matters are those contained in this Section 5.13 and Section 5.14 and none of the Stock Option Plan. No Options have been retroactively granted by the Company Boardother representations and warranties set forth in this Agreement shall be deemed to constitute, nor has the exercise price directly or indirectly, a representation or warranty in respect of any such Option been determined retroactivelyemployee benefit matters.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a4.11(a) of the Umpqua Disclosure Schedules contains a true and complete list of each “Schedule lists all employee benefit plan” plans (as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, and all bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement or other benefit plans, programs or arrangements, and all retention, bonus, employment, termination, severance plans, programs or arrangements or other material compensatory contracts or agreements to or with respect to which Umpqua or any Subsidiary or any trade or business of Umpqua or any of its Subsidiaries, whether or not incorporated, all of which together with Umpqua would be deemed a “single employer” within the meaning of Section 4001 of ERISA (a “Umpqua ERISA Affiliate”), is a party or has any current or future obligation or that are maintained, contributed to or sponsored by Umpqua or any of its Subsidiaries or any of their respective Umpqua ERISA Affiliates for the benefit of any current or former employee, officer, director or independent contractor of Umpqua or any of its Subsidiaries or any of their respective Umpqua ERISA Affiliates, in each case to the extent material (all such plans, programs, arrangements, contracts or agreements, collectively, the “Umpqua Benefit Plans”).
(b) Umpqua has heretofore made available (it being understood that documents available via the SEC’s EXXXX system shall be deemed to have been made available for purposes of this representation) to Sterling true and complete copies of each of the Umpqua Benefit Plans and the following related documents: (i) all summary plan descriptions, amendments, modifications or material supplements to any Umpqua Benefit Plan, (ii) the annual report (Form 5500), if any, filed with the IRS for the last two plan years, (iii) the most recently received IRS determination letter, if any, relating to a Umpqua Benefit Plan, and (iv) the most recently prepared actuarial report for each Umpqua Benefit Plan (if applicable) for each of the last two years.
(c) Each Umpqua Benefit Plan has been established, operated and administered in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code.
(d) With respect to each Umpqua Benefit Plan that is intended to qualify be qualified under Section 401(a) of the Code (the “Umpqua Qualified Plans”) and the related trust, IRS has issued a favorable determination letter, which letter has not been revoked (nor has revocation been threatened), and, to the knowledge of Umpqua, there are no existing circumstances and no events have occurred that could adversely affect the qualified status of any Umpqua Qualified Plan or the related trust. No trust funding any Umpqua Benefit Plan is intended to meet the requirements of Section 501(c)(9) of the Code.
(be) With respect Except as would not reasonably be likely to result in material liability to Umpqua or its Subsidiaries, each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Umpqua Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangementnonqualified deferred compensation plan” (as defined in Section 3(40409A(d)(1) of ERISA).
the Code) and any award thereunder, in each case that is subject to Section 409A of the Code, has (di) Each Benefit Plan has since January 1, 2005, been establishedmaintained and operated, administered and maintained materially in accordance with its terms and all material respects, in good faith compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D 409A of the Code or Sections 6652and IRS Notice 2005-1 and (ii) since January 1, 4975 or 4980H 2009, been, in all material respects, in documentary and operational compliance with Section 409A of the Code.
(f) With respect None of Umpqua and its Subsidiaries nor any of their respective Umpqua ERISA Affiliates has, at any time during the last six years, maintained, sponsored, contributed to each Benefit or been obligated to contribute to any plan that is (i) a Title IV Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit (ii) a Multiemployer Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by(iii) a Multiple Employer Plan, and none of Umpqua and its Subsidiaries nor any of their respective Umpqua ERISA Affiliates has incurred any material liability to a Title IV Plan or a Multiemployer Plan or Multiple Employer Plan as a result of a complete or partial withdrawal (as those terms are defined in accordance with, GAAPPart I of Subtitle E of Title IV of ERISA) from a Multiemployer Plan or Multiple Employer Plan.
(g) All reports and disclosures relating Neither Umpqua nor any of its Subsidiaries sponsors, has sponsored or has any material obligation with respect to the Benefit Plans required to be filed with any employee benefit plan that provides for any post-employment or furnished to a Governmental Authority post-retirement health or plan participants medical or life insurance benefits for retired, former or current employees or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely mannerdependents thereof, except as required by Section 4980B of the Code.
(h) There exists no condition that would subject the Company All material contributions required to be made to any Liability Umpqua Benefit Plan under applicable Law or by any plan document or other contractual undertaking, and all material premiums due or payable with respect to insurance policies funding any Umpqua Benefit Plan, for any period through the terms date hereof, have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the books and records of Umpqua.
(i) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Umpqua, there are no pending or, to the knowledge of Umpqua, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to Umpqua’s knowledge, no such claim or lawsuit is threatened, against the Umpqua Benefit Plans, any fiduciaries thereof with respect to their duties to the Umpqua Benefit Plans or applicable Law relating thereto other than the assets of any payment of benefits the trusts under any of the Umpqua Benefit Plans which could reasonably be expected to result in the normal course any liability of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company Umpqua or any of their Affiliates other than ordinary administrative expenses typically incurred its Subsidiaries to the PBGC, the IRS, the Department of Labor, any Multiemployer Plan, a Multiple Employer Plan, any participant in a termination Umpqua Benefit Plan, or any other party.
(j) None of Umpqua and its Subsidiaries has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject Umpqua or any of its Subsidiaries or any person that Umpqua or any of its Subsidiaries has an obligation to indemnify in respect thereof to any material tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA.
(k) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event. The Company has no commitment ) result in, cause the vesting, exercisability or obligation and has not made delivery of, or increase in the amount or value of, any representations payment, right or other benefit to any employee, officer, directordirector or other service provider of Umpqua or any of its Subsidiaries, independent contractor or consultant, whether result in any limitation on the right of Umpqua or not legally binding, any of its Subsidiaries to adopt, amend, modify merge, terminate or terminate receive a reversion of assets from any Umpqua Benefit Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by Umpqua or any of its Subsidiaries in connection with the consummation transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 etCode. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company Neither Umpqua nor any of its ERISA Affiliates has any Liability to provide post-termination Subsidiaries maintains or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating contributes to a Benefit Plan (other than routine claims for benefits)rabbi trust or similar funding vehicle, and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone not cause or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay require Umpqua or any other payment; (ii) accelerate of its affiliates to establish or make any contribution to a rabbi trust or similar funding vehicle. No Umpqua Benefit Plan provides for the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” up or other payment to any “disqualified individual” within the meaning reimbursement of Taxes under Section 280G(c) 4999 or 409A of the Code.
(nl) All Options have been duly authorized There are no pending or, to Umpqua’s knowledge, threatened material labor grievances or material unfair labor practice claims or charges against Umpqua or any of its Subsidiaries, or any strikes or other material labor disputes against Umpqua or any of its Subsidiaries. Neither Umpqua nor any of its Subsidiaries are party to or bound by any collective bargaining or similar agreement with any labor organization applicable to employees of Umpqua or any of its Subsidiaries and, to the Company Board in compliance with the terms knowledge of the Stock Option Plan. No Options have been retroactively granted Umpqua, there are no organizing efforts by the Company Board, nor has the exercise price any union or similar group seeking to represent any employees of Umpqua or any such Option been determined retroactivelyof its Subsidiaries.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a4.19(a) of the Disclosure Schedules contains a true and complete list of each material pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, change in control, retention, severance, vacation, paid time off (PTO), medical, vision, dental, disability, welfare, Code Section 125 cafeteria, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is tax-qualified and whether or not subject to ERISA) and each other benefit agreement, programwhich is or has been maintained, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintainedcontributed to, administered or required to be contributed to by Seller for the Company benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Business or any spouse or dependent of such individual, or under which Seller has or may have any Liability, or with respect to which the Company has or may Buyer would reasonably be expected to have any Liability (as listed on Section 4.19(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Company Seller has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of no ERISA Affiliates. Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a4.19(a) of the Code.Disclosure Schedules denotes which Benefit Plans are governmental plans as defined in Section 3(32) of XXXXX. 00 Xxxxx Xxxxxxxx and Sale Agreement dated as of December 28, 2018 between Municipality of Anchorage and Chugach Electric Association, Inc.
(b) With respect to each Benefit PlanPlan that is a retirement plan, the Company Seller has made available to Parent Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither Each Benefit Plan that is intended to be qualified within the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation meaning of Section 401(a) of the Code (a “Qualified Benefit Plan”) is so qualified and received a favorable and current determination letter from the Internal Revenue Service with respect to contribute tothe most recent five year filing cycle, or incurred any Liability with respect toto a prototype or volume submitter plan, either can rely on an opinion letter from the Internal Revenue Service to the prototype plan or volume submitter plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that would reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. No pension plan (i) other than a multiemployer plan within the meaning of Section 3(37) of ERISA (a “Multiemployer Plan”)) which is subject to minimum funding requirements, including any multiple employer plan, as such term (each a “Single Employer Plan”) in which employees of the Business participate or have participated has an “accumulated funding deficiency,” whether or not waived, or is defined in Sections 3(37) or 4001(a)(3subject to a lien for unpaid contributions under Section 303(k) of ERISA or (iiSection 430(k) an employee pension of the Code. No Single Employer Plan covering employees of the Business which is a defined benefit plan (has an “adjusted funding target attainment percentage,” as defined in Section 3(2436 of the Code, less than 80%.
(d) of ERISASeller has not (i) that is incurred or was subject reasonably expects to incur, either directly or indirectly, any material Liability under Title IV of ERISA or Section 412 or Section 430 related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Guaranty Corporation; or (iii) engaged in any transaction which would give rise to liability under Section 302 4069 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(404212(c) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan (i) that is a Multiemployer Plan, (A) all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums contributions required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan by Seller have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required byapplicable Multiemployer Plan, (B) Seller has not incurred any withdrawal liability under Title IV of ERISA that remains unsatisfied, and (C) no Multiemployer Plan is in accordance withcritical, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with endangered or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation seriously endangered status or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other paymentsuffered a mass withdrawal; (ii) accelerate no Action has been initiated by the time of payment, funding Pension Benefit Guaranty Corporation to terminate any Multiemployer Plan or vesting, or increase the amount of compensation (including stock-based compensation) due to appoint a trustee for any such individualMultiemployer Plan; and (iii) limit no such plan maintained or restrict the right of the Company contributed to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning last six (6) years is a Single Employer Plan subject to Title IV of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the CodeERISA.
(nf) All Options have been duly authorized by This Section 4.19 and Section 4.20 (to the Company Board in extent related to pensions and employee benefits) constitute the sole and exclusive representation and warranty of Seller regarding pension and employee benefit or liabilities or obligations, or compliance with the terms Laws relating thereto. Asset Purchase and Sale Agreement dated as of the Stock Option Plan. No Options have been retroactively granted by the Company BoardDecember 28, nor has the exercise price 2018 between Municipality of any such Option been determined retroactively.Anchorage and Chugach Electric Association, Inc.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Chugach Electric Association Inc)
Employee Benefit Matters. (a) Section 3.20(aSchedule 5.13(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) deferred compensation and each other benefit agreementincentive or equity compensation plan, program, plan agreement or arrangement; each severance or termination pay, includingmedical, without limitationsurgical, each bonus hospitalization, life insurance and other welfare plan, deferred compensation fund or program (within the meaning of Section 3(1) of ERISA); each profit-sharing, stock bonus or other pension plan, supplemental retirement, incentive compensation fund or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability program (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA); and each other employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by Seller or the Subsidiary or by any trade or business, whether or not subject to ERISAincorporated, that together with Seller or the Subsidiary would be deemed a single employer within the meaning of Section 4001(b) of ERISA (an “ERISA Affiliate”), in each case for the benefit of any plan Employee or Former Employee (the “Employee Plans”). Seller’s Pension Plans and Seller’s 401(k) Plan are the only Employee Plans that are intended to qualify be qualified under Section 401(a) of the CodeIRC. Other than Employees and Former Employees of the Business (and their applicable beneficiaries) and the PEI Participants, no individuals participate in or are otherwise entitled to receive benefits from Seller’s Pension Plans. Each Employee Plan that is subject to Section 302 or Title IV of ERISA or Sections 412 and 430 of the IRC is hereinafter referred to as a “Title IV Plan.” Other than as specifically set forth in the Employee Agreement, Buyer shall have no liability with respect to any Employee Plan of Seller or any of its Affiliates (including the Subsidiary).
(b) With respect to each Benefit Employee Plan, Seller or the Company Subsidiary has made available heretofore delivered to Parent accurate, current Buyer true and complete copies of the Employee Plan and any amendments thereto (or if the Employee Plan is not a written Employee Plan, a description thereof), any related trust or other funding vehicle documents, the most recent actuarial valuation reports, annual reports, Forms 5500 and asset statements, in each case, as applicable, any summary plan descriptions required under ERISA or the IRC and the most recent determination letter received from the IRS with respect to each Employee Plan intended to qualify under Section 401 of the following: IRC.
(c) As of the date hereof, no liability under Section 302 or Title IV of ERISA has been incurred by Seller or any ERISA Affiliates (including the Subsidiary) with respect to Seller’s Pension Plans that has not been satisfied in full, other than liability for premiums due the Pension Benefit Guaranty Corporation (“PBGC”) (which premiums have been paid when due). Except as set forth on Schedule 5.13(c), since May 1, 2010 to the date of this Agreement, there has been no “reportable event” (as such term is defined in Section 4043 of ERISA) in connection with any of Seller’s Pension Plans other than reportable events for which notice is waived under applicable regulations.
(d) Except as set forth on Schedule 5.13(d), all contributions, premiums or payments required to be made by Seller or the Subsidiary any of its ERISA Affiliates with respect to any Employee Plan prior to the Closing Date have been timely made prior to the Closing Date or, if not yet due, have been reflected in the Financial Statements in accordance with GAAP, and will be reflected in the Carve-Out Financials in accordance with GAAP when delivered.
(e) No Title IV Plan that is maintained or contributed to by Seller or its ERISA Affiliates (including the Subsidiary) and for which Buyer could, directly or indirectly, reasonably be expected to have liability, is or has been a multiemployer plan, as defined in Section 3(37) of ERISA, nor is any Title IV Plan a plan described in Section 4063(a) of ERISA. Neither Seller nor any ERISA Affiliate (including the Subsidiary) has made or suffered a complete withdrawal or a partial withdrawal, as determined under Sections 4203 and 4205 of ERISA (or any liability resulting therefrom has been satisfied in full). With respect to each Title IV Plan, as of the date of this Agreement, there has been no material change in the financial condition of any such Title IV Plan since the last day of its most recently completed fiscal year.
(f) Neither Seller nor the Subsidiary, any Employee Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection with which Seller or the Subsidiary or any Employee Plan could be subject to either a penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the IRC.
(g) Each Employee Plan has been operated and administered (including with respect to required contributions thereunder) in all material respects in accordance with its terms and applicable law, including but not limited to ERISA and the IRC.
(h) Each Employee Plan intended to be qualified under Section 401(a) of the IRC is so qualified and has received a favorable determination or opinion letter as to its qualification. To the Knowledge of Seller or the Subsidiary, nothing has occurred since the date of determination of such qualification and exemption that would reasonably be expected to adversely affect the qualified or exempt status of such Employee Plan or trust. Each Employee Plan intended to satisfy the requirements of Section 501(c)(9) of the IRC has satisfied such requirements in all material respects.
(i) where Except as disclosed in Schedule 5.13(i)(A), no Employee Plan provides medical, surgical, hospitalization, death or similar benefits coverage (whether or not insured) for Employees or Former Employees for periods extending beyond their retirement or other termination of service, other than (A) coverage mandated by Section 4980B of the Benefit Plan has been reduced IRC, Section 601 et seq of ERISA, or comparable provisions of state law, (B) death benefits under any pension plan, or (C) benefits the full cost of which is borne by the Employee or Former Employee (or in either case, his beneficiary).
(j) No amounts payable under the Employee Plans will fail to writing, be deductible for federal income tax purposes by virtue of Section 280G of the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future IRC as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit PlanAgreement.
(ck) Neither the Company nor any ERISA Affiliate has ever maintainedExcept as disclosed in Schedule 5.13(k), contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement will not, either alone or otherwisein combination with another event, (i) entitle any Employee or Former Employee to severance pay or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due an Employee or Former Employee.
(il) Other than Except as required by Section 601 et. seq. of ERISAwould not result in any liability to Buyer or its Affiliates, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is there are no pending or, to the Company’s KnowledgeKnowledge of Seller, threatened Action relating to a Benefit Threatened or anticipated claims, liens, lawsuits or complaints by or on behalf of any Employee Plan, by any Employee, Former Employee or beneficiary thereof covered under any such Employee Plan, or otherwise involving any such Employee Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): Except as disclosed in Schedule 5.13(m), (i) entitle Seller or the Subsidiary has no plan, contract or commitment, whether legally binding or not, to create any current additional employee benefit or former directorcompensation plans, officerpolicies or arrangements or, employeeexcept as may be required by applicable law, independent contractor or consultant of the Company to severance pay or modify any other payment; Employee Plan and (ii) accelerate the time of paymenteach Employee Plan that provides medical, funding surgical, hospitalization, death or vesting, similar benefits coverage (whether or increase the amount of compensation (including stock-based compensationnot insured) due to any such individual; (iii) limit for Employees or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” Former Employees for periods extending beyond their retirement or other payment termination of service may be amended, modified or terminated at any time without incurring liability thereunder, other than medical or welfare claims incurred prior to any “disqualified individual” within the meaning of Section 280G(c) of the Codesuch amendment or termination.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(aExcept as set forth on Schedule 3.25, neither GAIMCO ------------- nor CAM has outstanding or is a party to or subject to liability under: (i) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA (any agreement, arrangement, plan or policy, whether or not such plan is subject to ERISAconsidered legally binding, that involves (A) and each other benefit agreementany pension, programretirement, plan profit sharing, deferred compensation, bonus, stock option, stock purchase, health, welfare, or arrangementincentive plan; or (B) any welfare or "fringe" benefits, including, without limitation, each bonus planvacation, deferred compensation planseverance, supplemental retirementdisability, incentive compensation medical, hospitalization, dental, life and other insurance, tuition, company car, club dues, sick leave, maternity, paternity or retention planfamily leave, equity purchase planor other benefits; or (ii) any employment, equity option planconsulting, equity appreciation right planengagement, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute retainer agreement or arrangement whereby GAIMCO or CAM employs, retains or engages any individual or other entity as an employee, consultant or independent contractor to GAIMCO or CAM ((i) and other similar plans(ii) together, programsthe "GAIMCO Plans," and each item thereunder, agreementsa "GAIMCO Plan"). True, arrangements correct, and complete copies of all documents creating or understandingsevidencing any GAIMCO Plan listed on Schedule 3.25 ------------- have been delivered to Conning Corp. Except as set forth on Schedule 3.25, in each such case------------- there are no negotiations, demands or proposals which are pending or threatened or which have been made since December 31, 1992 which concern matters now covered, or that is sponsoredwould be covered, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (eachforegoing types of agreement, a “Benefit Plan”). The Company has never adoptedarrangement, entered into, maintained, sponsored, contributed to, been required to contribute toplan, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Codepolicy.
(b) With respect Each GAIMCO Plan complies with and has been administered, operated, and maintained in compliance with, and, except as set forth on Schedule 3.25, neither GAIMCO nor CAM has any direct or ------------- indirect liability under, the Code or ERISA, as the case may be, or any other Law applicable to each Benefit any GAIMCO Plan, the Company has made available and no GAIMCO Plan is subject to Parent accurate, current and complete copies Title IV of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit PlanERISA.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan No "reportable event" (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” "prohibited transaction" (as defined in Section 3(40the Code or ERISA) has occurred, and GAHC has no knowledge of ERISA)a situation which would give rise to a reportable event or prohibited transaction, with respect to any GAIMCO Plan.
(d) Each Benefit Plan has been established, administered All contributions for all periods ending prior to the Closing Date which are required to be made prior to the Closing Date will be made prior to the Closing Date by GAIMCO or CAM and maintained materially all members of the controlled group in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amountspast practice. All insurance premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan due have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved subject only to normal retrospective adjustments in the ordinary course, with regard to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit GAIMCO Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, for policy years or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination policy periods ending on or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.before the
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a) of the Disclosure Schedules contains The only Medovex Benefit Plan maintained by any Medovex Member is a true and complete list of each “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not such plan is subject to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a) of the Codefor health benefits.
(b) With respect to each the Medovex Benefit Plan, the Company Medovex has made available to Parent Seller accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iviii) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, COBRA communications, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any the Medovex Benefit Plan; and (viv) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Medovex Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Medovex Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA ERISA, the Code and any applicable local Laws). All benefits, contributions and premiums relating to the Code).
(e) Nothing has occurred with respect to any Medovex Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made paid in accordance with the terms of such Medovex Benefit Plan and all applicable Law or are properly recorded as liabilities on the books of the Company andLaws and accounting principles, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding and all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Medovex Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, with GAAP.
(gd) All reports and disclosures Neither Medovex nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) withdrawn from any Benefit Plan; (iii) engaged in any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA; (iv) incurred taxes under Section 4971 of the Benefit Plans required Code with respect to be filed with any Single Employer Plan; or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law (v) participated in a timely mannermultiple employer welfare arrangements (MEWA).
(he) There exists With respect to the Medovex Benefit Plan (i) such plan is not a Multiemployer Plan; (ii) except as set forth in Section 5.18(e) of the Disclosure Schedules, no condition that would such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan or the plan of any ERISA Affiliate maintained or contributed to within the last six (6) years is a Single Employer Plan subject to Title IV of ERISA; and (v) no “reportable event,” as defined in Section 4043 of ERISA, with respect to which the Company reporting requirement has not been waived, has occurred with respect to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwisesuch plan.
(if) Other than as required by Section under Sections 601 et. seq. to 608 of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ERISA or other applicable Law (collectivelyLaw, “COBRA”), no the Medovex Benefit Plan provides does not provide post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(jg) There is no pending or, to the CompanyMedovex’s Knowledge, threatened Action relating to a the Medovex Benefit Plan (other than routine claims for benefits), and no the Medovex Benefit Plan has not within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kh) There has been no amendment to, announcement by the Company Medovex or any of its Affiliates relating to, or change in employee participation or coverage under, any the Medovex Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year (other than on a de minimis basis) with respect to any director, officer, employee, consultant or independent contractor or consultantof the business, as applicable.
(l) Neither the Company nor any of its Affiliates . No Medovex Member has any commitment or obligation or has made any representations to any director, officer, employee, consultant or independent contractor or consultantof the business of any Medovex Member, whether or not legally binding, to adopt, amend, modify or terminate any Medovex Benefit PlanPlan or any collective bargaining agreement.
(mi) The Medovex Benefit Plan is not subject to Section 409A of the Code. No Medovex Member has any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(j) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company business of any Medovex Member to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Medovex Benefit Plan; (viv) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (viv) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a3.17(a) of the Disclosure Schedules contains Schedule sets forth a true and complete list of 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, (whether or not such plan is subject to “ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by the Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA) and (ii) each other profit-sharing, deferred compensation, bonus, stock option, stock purchase, equity or equity-based, incentive, commission, employment, consulting, independent contractor, severance, change-of-control, retention, paid time off, holiday pay, pension, retirement, medical, welfare, fringe and other compensation or benefit plan, program, policy, agreement, contract or arrangement (whether written or unwritten), in either case, maintained, contributed to, or required to be contributed to, by the Group Companies for the benefit of any plan intended current or former employee, director, officer or independent contractor of the Group Companies (and/or their beneficiaries) or with respect to qualify under which the Group Companies has or would reasonably be expected to have any Liability (contingent or otherwise) (collectively, “Benefit Plans”). Section 401(a3.17(a) of the CodeDisclosure Schedule separately identifies the plan sponsor of each Benefit Plan.
(b) With As applicable with respect to each Benefit Plan, the Company has Sellers have delivered or made available to Parent accurate, current the Purchaser true and complete copies of each of the following: following (i) where the Benefit Plan has been reduced to writing, the plan document (together with all amendments; amendments thereto) and the summary plan description (ii) together with all summary of material modifications thereto), and in the case where the Benefit Plan has not been reduced to writing, a written summary description of all material plan terms; terms thereof, (ii) any trust agreement, insurance contract or other funding agreement, (iii) where applicableany administrative services, copies of any insurance policies and contractsrecordkeeping, administration agreements and similar agreementsinvestment advisory, now in effect investment management or required in the future as a result of the transactions contemplated by this Agreement or otherwise; other service agreement, (iv) copies of any summary plan descriptionsthe last three (3) most recently filed annual reports on Form 5500 and all schedules and attachments thereto, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of the most recent IRS determination, opinion or advisory letter and any pending application for an IRS determination letter and any correspondence with the IRS related thereto, (vi) the last three (3) most recent summary annual reports, actuarial reports, financial statements and non-discrimination testing results and (vii) all material notices, letters correspondence (including any applications or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other submissions under any voluntary correction programs) with any Governmental Authority relating to such plan within the Benefit Planlast three (3) years.
(c) Neither Except as set forth on Section 3.17(c) of the Company nor any ERISA Affiliate Disclosure Schedule, each Benefit Plan is and has ever maintainedbeen operated and administered in all material respects in compliance with its terms and all applicable Laws. With respect to each Benefit Plan intended to be tax-qualified under Section 401(a) of the Code, contributed toeach such Benefit Plan has a current favorable IRS determination letter (or, had an obligation to contribute to, or incurred any Liability with respect to, either (i) in the case of a multiemployer pre-approved plan, a current IRS opinion or advisory letter on which it can rely) as to its tax-qualified status under the Code and, to the Sellers’ Knowledge, nothing has occurred since the date of such term is defined favorable determination (or opinion or advisory) letter which would reasonably be expected to adversely affect the qualified status of such plan or result in Sections 3(37) or 4001(a)(3material Liability to the Group Companies. Except as set forth on Section 3.17(c) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that the Disclosure Schedule, no Benefit Plan is or was subject to Title IV the laws of ERISA or Section 412 or Section 430 a jurisdiction outside of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA)United States.
(d) Each All benefits, contributions and premiums required by and due under the terms of each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all or applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company Law have either been timely made paid or properly accrued in accordance with the terms of such Benefit Plan, the terms of all applicable Laws and GAAP. With respect to any Benefit Plan, no event has occurred that has resulted in or, to the Sellers’ Knowledge, is reasonably expected to result in any Taxes, fines, interest payments, penalties, or other Liabilities with respect to any Benefit Plan and under any applicable Law or are properly recorded as liabilities on including the books of the Company Code and ERISA, and, to the extent required by GAAPSellers’ Knowledge, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required no condition exists with respect to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in fullthat could subject the Group Companies to any material Taxes, fines, interest payments, penalties or Liabilities. All benefits accrued under any unfunded Each Benefit Plan may be modified or terminated, in whole or in part, by the Group Companies without Liability (other than standard administrative expenses incurred for such modification or termination).
(e) No Benefit Plan provides health, life insurance or other welfare benefits to retired or other terminated employees, officers, independent contractors, or directors of the Group Companies (or any spouse, beneficiary or dependent thereof), or to any other Person, other than “COBRA” continuation coverage required by Section 4980B of the Code or Sections 601-608 of ERISA or similar state Law at the participant’s sole cost.
(f) To the Sellers’ Knowledge, no “prohibited transactions” (as defined in Section 4975(c)(1) of the Code) or breaches of fiduciary duty of the Sellers, the Group Companies, or any director, officer or employee of the Group Companies, have been paid, accrued or otherwise adequately reserved occurred with respect to any of the extent required by, and in accordance with, GAAPBenefit Plans.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists are no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan Actions (other than routine claims for benefits), and either currently in progress, or, to the Sellers’ Knowledge, threatened or expected to be instituted in the future, relating to (i) any Benefit Plan, or (ii) any “fiduciary” of such plan (within the meaning of Section 3(21)(A) of ERISA) brought on behalf of any participant, beneficiary or fiduciary thereunder, or by any Governmental Authority and, to the Sellers’ Knowledge, no fact or event exists that would reasonably be expected to give rise to any such Action. No Benefit Plan is currently or, within the past three (3) years has been the subject of an examination been, under investigation or audit by a any Governmental Authority and, to the Sellers’ Knowledge, no such investigation or audit is contemplated or under consideration. No Benefit Plan is, or within the past three (3) years has been, the subject of an application or filing under under, or is a participant in, an a government-sponsored amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authorityprogram.
(kh) There Except as set forth in Section 3.17(h) of the Disclosure Schedule, neither the Group Companies, their Affiliates nor any ERISA Affiliate has within the past six (6) years sponsored, maintained, contributed to or been no amendment to, announcement by the Company or any of its Affiliates relating required to contribute to, or change has any liability in employee participation or coverage under, respect of any Benefit Plan that would increase the annual expense is or was (i) subject to Title IV of maintaining such plan above the level ERISA or Section 302 of ERISA or Section 412 of the expense incurred for Code, (ii) a “multiemployer plan,” as defined in Section 3(37) of ERISA, (iii) a “multiple employer plan,” as defined in Section 210(a) of ERISA or Section 413 of the most recently completed fiscal year with respect to any directorCode, officer(iv) a “voluntary employees’ beneficiary association,” as defined in Section 501(c)(9) of the Code, employee, independent contractor or consultant, (v) a “multiple employer welfare arrangement,” as applicabledefined in Section 3(40) of ERISA.
(li) Neither Except as set forth in Section 3.17(i) of the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any directorDisclosure Schedule, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither neither the execution of this Agreement nor any the consummation of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent eventsin combination with another event): (i) entitle increase the amount of compensation or benefits otherwise payable under any Benefit Plan; (ii) result in the acceleration of the time of payment, exercisability, funding or vesting of any compensation or benefits due to, or result in the forgiveness of any indebtedness owed by, any Person or entity (or any beneficiary or permitted transferee of the foregoing) or result in any Liability to any current or former director, officer, employee, employee or independent contractor or consultant of the Company to Group Companies; (iii) result in any compensatory payment or benefits (whether severance pay or otherwise) becoming due to, or with respect to, any other paymentcurrent or former director, officer, employee or independent contractor of the Group Companies; (iiiv) accelerate directly or indirectly cause the time Group Companies or any of payment, funding or vestingits Affiliates to set aside any assets to fund any benefit under any Benefit Plan, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iiiv) limit or restrict the right ability of the Company Purchaser, the plan sponsor or the Group Companies or any of its Affiliates, as applicable, to merge, amend or terminate any of the Benefit Plan; Plans. Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will (iv) increase the amount payable under either alone or result in any other material obligation pursuant to any Benefit Plan; (vcombination with another event) result in the payment of any “excess parachute paymentspayment” within the meaning of Section 280G(b) 280G of the Code; Code or (vi) require a “gross-up” or other payment to any “disqualified individual” within in the meaning imposition of an excise Tax under Section 280G(c) 4999 of the Code.
(nj) All Options have Each “nonqualified deferred compensation plan” under which any Group Company makes, is obligated to make or promises to make, payments subject to Section 409A of the Code, if any, has since the inception of such plan been duly authorized by the Company Board operated in compliance with the terms Section 409A of the Stock Option PlanCode, in all material respects, and the applicable Regulations and IRS guidance thereunder and the document or documents that evidence each such plan have, since the inception of such Group Company, conformed to the provisions of Section 409A of the Code and the Regulations thereunder in all material respects. No Options have payment pursuant to any arrangement between any Group Company and any “service provider” (as such term is defined in Section 409A of the Code and the Regulations thereunder) would reasonably be expected to subject any Person to a Tax pursuant to Section 409A of the Code, whether pursuant to the consummation of the transactions contemplated by this Agreement or otherwise. No Benefit Plan or other Contract provides a gross-up or other indemnification for any Taxes that may be imposed for failure to comply with the requirements of Section 409A of the Code.
(k) Each Benefit Plan that constitutes a “group health plan” has been retroactively granted operated and administered in compliance in all material respects with the applicable provisions of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (the “Affordable Care Act”) and the applicable regulations and guidance thereunder. No Group Company nor any ERISA Affiliate owes any Taxes imposed by Section 4980H of the Code, and no Group Company has incurred, and, to the Sellers’ Knowledge, no condition exists with respect to any Benefit Plan that would reasonably be expected to subject any Group Company (or any ERISA Affiliate) to, any material Tax, fine, interest or penalty or other Liability imposed by the Company BoardAffordable Care Act.
(l) No Group Company, any of its Affiliates, nor has any of its ERISA Affiliates have, nor could they reasonably be expected to have, any material Losses for Taxes under Sections 4975 through 4980 or Sections 4980A through 4980H of the exercise price of any such Option been determined retroactivelyCode.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Hc2 Holdings, Inc.)
Employee Benefit Matters. (a) Section 3.20(aSchedule 3.20 lists all plans, programs, and similar agreements, commitments or arrangements maintained by or on behalf of Seller or any other party that provide benefits or compensation to, or for the benefit of, current or former employees of Seller ("Plan" or "Plans"). Except as set forth on Schedule 3.20, only current and former employees of Seller participate in the Plans Copies of all Plans and, to the extent applicable, all related trust agreements, actuarial reports, and valuations for the most recent three years, all summary plan descriptions, prospectuses, Annual Report Form 5500s or similar forms (and attachments thereto) for the most recent three years, all Internal Revenue Service determination letters, and any related documents requested by Purchaser, including all amendments, modifications and supplements thereto, have been delivered to Purchaser, and all of the Disclosure Schedules contains a true same are true, correct and complete list complete.
(b) With respect to each Plan, except as set forth on Schedule 3.20: (i) no litigation or administrative or other proceeding is pending or threatened involving such Plan; (ii) such Plan has been administered and operated in compliance with, and has been amended to comply with all applicable laws, rules, and regulations, including, without limitation, the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal Revenue Code, and the regulations issued under ERISA and the Internal Revenue Code; (iii) Seller and its predecessors, if any, have made and as of the Closing Date will have made or accrued, all payments and contributions required, or reasonably expected to be required, to be made under the provisions of such Plan or required
(c) Schedule 3.20 lists each “Plan which is an "employee benefit plan” " as that term is defined in Section 3(3) of ERISA, including any terminated employee benefit plans and Multi employer Benefit Plans, which covers or covered any employee of Seller ("ERISA Plan").
(whether or not such plan is subject to ERISAd) and each other benefit agreementOf the ERISA Plans, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandings, in each such case, that is sponsored, maintained, administered or contributed to by only the _______________ (collectively the "Company or with respect to which the Company has or may have any Liability (each, a “Benefit Plan”). The Company has never adopted, entered into, maintained, sponsored, contributed to, been required to contribute to, or had any Liability with respect to, any “Plans") are "employee pension benefit plan” plans" within the meaning of Section 3(2) of ERISA. With respect to each Company Plan, whether or not subject to ERISA, or any except as set forth on Schedule 3.20: (i) such Company Plan constitutes a qualified plan intended to qualify under within the meaning of Section 401(a) of the Code.
(bInternal Revenue Code and the trust thereunder is exempt from federal income tax under Section 501(a) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendmentsInternal Revenue Code; (ii) where all minimum funding standards required by law with respect to the Benefit funding of benefits payable or to be payable under such Company Plan has not have been reduced to writing, a written summary of all material plan termsmet; (iii) where applicable, copies there is no "accumulated funding deficiency" within the meaning of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, had an obligation to contribute to, or incurred any Liability with respect to, either (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) of ERISA or (ii) an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Code Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The under such Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase no reportable event as described in Section 4043 of ERISA has occurred, or is continuing, with respect to such Company Plan, and Seller has not incurred any liability to the amount payable under or result in any other material obligation pursuant to any Pension Benefit PlanGuaranty Corporation; (v) result in “excess parachute payments” within if such Company Plan is a defined benefit plan, the meaning of Section 280G(b) fair market value of the Codeassets of the Company Plan trust are not less than the actuarial present value of benefits (both vested and nonvested) accrued under such Company Plan with respect to participants and beneficiaries, determined on a termination basis and as though all such accrued benefits were fully vested and nonforfeitable as of the Closing Date, taking into consideration the subsidies required under the Internal Revenue Code and the regulations and rulings thereunder and using the ongoing actuarial methods and assumptions of such Company Plan, which methods and assumptions are reasonable both individually and in the aggregate; or and (vi) require if the Company Plan is a “gross-up” defined contribution plan, it is
(e) To the extent Seller or other payment Purchaser is adopting or continuing any Plan, nothing contained in this Agreement shall limit or restrict Purchaser's right from and after the Closing Date to amend or to modify any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(n) All Options have been duly authorized by the Company Board Plans in compliance with the terms such manner as Purchaser deems appropriate or to terminate any of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactivelyPlans.
Appears in 1 contract
Employee Benefit Matters. (a) Section 3.20(a3.15(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit, retirement, employment, compensation, incentive, option, phantom equity, change in control, severance, vacation, paid time off, health and welfare and fringe-benefit agreement, plan” as that term is defined in Section 3(3) of ERISA (, policy and program, whether or not such plan is subject reduced to ERISA) and each other benefit agreement, program, plan or arrangement, including, without limitation, each bonus plan, deferred compensation plan, supplemental retirement, incentive compensation or retention plan, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreement, change in control agreement, golden parachute agreement or arrangement and other similar plans, programs, agreements, arrangements or understandingswriting, in each effect and covering one or more current or former employees, directors, managers, (or independent contractors of the Company or the beneficiaries or dependents of any such casePersons), that and is maintained, sponsored, maintainedcontributed to, administered or required to be contributed to by the Company Company, or with respect to under which the Company has any material liability for premiums or may have any Liability benefits (as listed on Section 3.15(a) of the Disclosure Schedules, each, a “Benefit Plan”). The Notwithstanding anything herein to the contrary, “Benefit Plan” shall not include any governmental plan or any other arrangement or program (i) to which the Company has never adopted, entered into, maintained, sponsored, contributed to, been or any of its Subsidiaries is required to contribute topursuant to applicable Law and (ii) with the exception of United States social security benefits, or had any Liability with respect to, any “employee pension benefit plan” within the meaning of that is listed on Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a3.15(a) of the CodeDisclosure Schedules.
(b) With respect to each Benefit Plan, the Company has Sellers have made available to Parent Buyer accurate, current and complete copies of each of the following: following (to the extent applicable): (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has amendments or, if not been reduced to in writing, a written summary of all material plan terms; terms (iiiii) where applicable, copies of any trust agreements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iviii) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; (iv) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (v) in the case of any Benefit Plan for which a Form 5500 is required to be filed, copies of the three most recently filed Form 5500s, with schedules attached; (vi) actuarial valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; and (vvii) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Labor or other Governmental Authority Pension Benefit Guaranty Corporation relating to the Benefit Plan.
(c) Neither Except as set forth in Section 3.15(c) of the Disclosure Schedules, to Sellers’ Knowledge, each Benefit Plan has been established, maintained, and administered in compliance with its terms and all applicable Law (including ERISA and the Code and the regulations promulgated thereunder and foreign Law relating to employee benefit plans). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a “Qualified Benefit Plan”) either has received a favorable determination letter from the Internal Revenue Service, or is based on a prototype plan, and can rely on an opinion or advisory letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified PR01/ 1485553.8 Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to Seller’s Knowledge, nothing has occurred that could reasonably be expected to cause the revocation of such determination letter from the Internal Revenue Service or the unavailability of reliance on such opinion or advisory letter from the Internal Revenue Service, as applicable. Except as set forth in Section 3.15(c) of the Disclosure Schedules, all benefits, contributions and premiums required by and due under the terms of each Benefit Plan or applicable Law have been timely paid in accordance with the terms of such Benefit Plan, the terms of all applicable Law and GAAP. With respect to any Benefit Plan, to Sellers’ Knowledge, no event has occurred or is reasonably expected to occur that has resulted in or would subject the Company to a penalty or Tax under Section 4975 of the Code or a penalty under Section 502 of ERISA.
(d) Except as set forth in Section 3.15(d) of the Disclosure Schedules, neither Sellers, GAA, the Company, nor any of their respective ERISA Affiliate has ever maintainedAffiliates sponsor, contributed tomaintain, had an obligation to contribute to, or incurred are required to contribute to any Liability with respect to, either plan that: (i) a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) subject to the minimum funding standards of Section 302 of ERISA or Section 412 of the Code; or (ii) an employee pension benefit plan is a “multiemployer plan” (as defined in Section 3(23(37) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
. Neither Sellers, GAA, the Company, nor any of their respective ERISA Affiliates: (dA) Each have incurred or reasonably expect to incur, either directly or indirectly, any material Liability under Title IV of ERISA or related provisions of the Code or foreign Law relating to employee benefit plans or to the Pension Benefit Plan has been establishedGuaranty Corporation; (B) have engaged in any transaction which would give rise to a liability of the Company or Buyer under Section 4069 or Section 4212(c) of ERISA; or (iii) have withdrawn from any pension plan which is subject to Title IV of ERISA, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code)or is a multiemployer plan.
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject Except as set forth in Section 3.15(e) of the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Parent or any of its Affiliates, to a penalty Disclosure Schedules and other than as required under Section 502 of ERISA, to any liability for a breach of fiduciary duty under Section 409 of ERISA, or to tax or penalty under Chapter 43 of Subtitle D 4980B of the Code or Sections 6652other applicable Law, 4975 no Benefit Plan provides benefits or 4980H coverage in the nature of the Codehealth, life or disability insurance following retirement or other termination of service (other than death benefits when termination occurs upon death).
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made Except as set forth in accordance with the terms of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books Section 3.15(f) of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner.
(h) There exists no condition that would subject the Company to any Liability under the terms of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
Disclosure Schedules: (i) Other than as required by Section 601 et. seq. of ERISA, Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reason, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated in compliance in all material respects with COBRA and other similar applicable Law.
(j) There there is no pending or, to the Company’s Sellers’ Knowledge, threatened Action action relating to a Benefit Plan (other than routine claims for benefits), ; and (ii) no Benefit Plan has within the three years prior to the date of this Agreement been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(kg) There has been Except as set forth in Section 3.15(g) of the Disclosure Schedules, no amendment toBenefit Plan exists that could: (i) result in the payment to any employee, announcement by director, manager or consultant of any money or other property; (ii) accelerate the Company vesting of or provide any additional rights or benefits (including funding of compensation or benefits through a trust or otherwise) to any employee, director, manager or consultant of the Company, except as a result of any partial plan termination resulting from this Agreement; or (iii) limit or restrict the ability of Buyer or its Affiliates relating toto merge, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable.
(l) Neither the Company nor any of its Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify amend or terminate any Benefit Plan.
(m) Neither , in each case, as a result of the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant ). Neither the execution of this Agreement nor the consummation of the Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) transactions contemplated by this Agreement will result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
(nh) All Options have been duly authorized by the Company Board The representations and warranties set forth in compliance with the terms of the Stock Option Planthis Section 3.15 are Sellers’ and GAA’s sole and exclusive representations and warranties regarding employee benefit matters. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.PR01/ 1485553.8
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (GAIN Capital Holdings, Inc.)
Employee Benefit Matters. (a) Section 3.20(a) 4.12 of the Disclosure Schedules contains Schedule sets forth a true complete and complete accurate list of each all benefit plans and compensatory programs, including but not limited to all “employee benefit planplans” as that term is defined in within the meaning of Section 3(3) of ERISA (ERISA, whether or not such plan is subject to ERISA) , and each other benefit agreementall pension, programprofit sharing, plan or arrangement, including, without limitation, each bonus planretirement, deferred compensation plancompensation, savings, incentive, bonus, deferred compensation, stock option, stock purchase, restricted stock, equity or equity based compensation, supplemental retirement, incentive compensation or retention planexcess benefit, equity purchase plan, equity option plan, equity appreciation right plan, phantom equity plan, vacation policy or plan, severance pay plan, disability plan, death benefit plan, cafeteria plan, employee assistance program, paid time off policy, employment agreement, consulting agreement, retention incentive agreement, noncompetition agreement, confidentiality agreementemployment, change in control agreementcontrol, golden parachute agreement or arrangement severance, medical and hospitalization, insurance, life, disability, vacation, paid time-off, salary continuation, sick pay, welfare, fringe benefit and all other similar material employee benefit plans, contracts, programs, agreements, arrangements or understandingspolicies and arrangements, in each such casecase that are for the benefit of or relating to any current or former directors, employees, or consultants of the Company, or any spouse, dependent or beneficiary thereof, or that is are maintained, sponsored, maintained, administered contributed to or required to be contributed to by the Company Company, or with respect to which the Company has or may have any Liability liability or obligations, contingent or otherwise (each, a the “Benefit PlanEmployee Plans”). .
(b) The Company has never adoptedmade available to the Buyer true and complete copies of the following documents, entered intoto the extent applicable: (i) all Employee Plans and documents (including any amendments or modifications thereto) and related trust agreements, annuity contracts, or any other funding arrangement and any amendments thereto, as applicable; (ii) all current summary plan descriptions (including any summaries of material modifications thereto); (iii) the Form 5500 filed in the most recent three plan years; and (iv) the most recent determination letter or opinion letter, as applicable, received from or issued by the Internal Revenue Service. In addition, with respect to each of the Employee Plans for the three most recently completed plan years, any plan financial statements and accompanying accounting reports, service contracts, fidelity bonds, and employee and participant annual QDIA notice, safe harbor notice, or fee disclosures notices under 29 CFR 2550.404a-5, and nondiscrimination testing data and results under Code Sections 105(h), 125, 129, 401(k), and 401(m), as applicable, have been provided to Buyer.
(c) Each Employee Plan has been established, maintained, funded and administered in all material respects in accordance with its terms and complies in form and in operation in all material respects with the applicable requirements of ERISA, the Code and other applicable Laws. There is no pending or, to Company’s Knowledge, threatened claims, litigation, regulatory action, or other actions relating to any Employee Plan other than for routine claims for benefits in the ordinary course of business consistent with past practice. No Employee Plan is the subject of a pending or threatened investigation or audit by the Internal Revenue Service, the U.S. Department of Labor, or the Pension Benefit Guaranty Corporation.
(d) The Internal Revenue Service has determined that the current form of each Employee Plan that is intended to be qualified under Section 401(a) of the Code satisfies the requirements of Section 401(a) of the Code, as reflected in a current favorable determination letter, or such Employee Plan is maintained under a pre-approved plan and is entitled to rely upon a favorable opinion or advisory letter, as applicable, issued by the Internal Revenue Service, and nothing has occurred since the date of any such determination, and no conditions or circumstances exist, that could reasonably be expected to adversely affect such qualification. .
(e) Neither the Company nor any ERISA Affiliate, has at any time maintained, sponsored, contributed to, or been required obligated to contribute to, or had any Liability liability, contingent or otherwise, with respect to, any plan subject to Title IV of ERISA, including a Multiemployer Plan, or a plan subject to ERISA Section 302 or Code Section 412. None of the Employee Plans is or is funded through the use of (i) a “employee pension benefit multiple employer plan” (within the meaning of ERISA or Section 413(c) of the Code); (ii) a voluntary employees’ beneficiary association (within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA, or any plan intended to qualify under Section 401(a501(c)(9) of the Code.
(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments); (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; or (iii) where applicable, copies a “multiple employer welfare association” as defined in Section 3(40) of any insurance policies and contracts, administration agreements and similar agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other similar written communications (or a description of any oral communications) relating to any Benefit Plan; and (v) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, or other Governmental Authority relating to the Benefit Plan.
(c) ERISA. Neither the Company nor any ERISA Affiliate has ever maintainedincurred, contributed toand to the Company’s Knowledge, had an obligation there are no circumstances under which they could reasonably be expected to contribute toincur, or incurred any Liability with respect to, either (i) liability under Title IV of ERISA. No notice of a multiemployer plan, as such term is defined in Sections 3(37) or 4001(a)(3) “reportable event,” within the meaning of Section 4043 of ERISA is required to be filed for any Employee Plan in connection with the transactions contemplated by this Agreement.
(f) All contributions, premiums, and benefits required to be made under the terms of the Employee Plans have been timely made. All required contributions (including all employer contributions and employee salary reduction contributions), premiums and other payments for the current plan year or any plan year ending on or before the Closing Date that are due on or before the Closing Date, under all Employee Plans will have been made or properly accrued on or before the Closing Date.
(iig) an employee pension benefit plan (The Company has not engaged in any prohibited transactions, as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 or Section 430 4975 of the Code or Section 302 or Section 303 406 of ERISA. The Company has not participated in any union-sponsored multiemployer welfare benefit fund maintained pursuant to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(d) Each Benefit Plan has been established, administered and maintained materially in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).
(e) Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on Employee Plan or after the Closing Date, Parent its related trust or has breached any of its Affiliates, to a penalty under Section 502 of ERISA, fiduciary duty with respect to any liability for a breach of fiduciary duty under Section 409 of ERISAEmployee Plan or its related trust that, in either event, singly or in the aggregate could result in liabilities to tax or penalty under Chapter 43 of Subtitle D of the Code or Sections 6652, 4975 or 4980H of the Code.
(f) With respect to each Benefit Plan, all payments due from the Company have either been timely made in accordance with the terms excess of such Benefit Plan and applicable Law or are properly recorded as liabilities on the books of the Company and, to the extent required by GAAP, adequate reserves are reflected on the financial statements of the Company for such amounts. All premiums required to be paid for each insurance policy funding all or any portion of the benefits under any Benefit Plan have been timely paid in full. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to a Governmental Authority or plan participants or beneficiaries have been prepared in accordance with applicable Law and filed or furnished in accordance with applicable Law in a timely manner$50,000.
(h) There exists no condition that would subject Neither the Company to any Liability under the terms execution and delivery of the Benefit Plans or applicable Law relating thereto other than any payment of benefits in the normal course of plan operation. Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Parent, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan in connection with this Agreement nor the consummation of the transactions contemplated by this Agreement hereby will (either alone or in conjunction with any other event) (i) result in, cause the acceleration of any vesting, exercisability or delivery of, or increase in the amount or value of, any payment, right or other benefit to any current or former director, employee, or consultant of the Company, (ii) result in any (1) requirement to fund any benefits or set aside benefits in a trust (including a rabbi trust) or (2) limitation on the right of the Company to amend, merge, terminate or receive a reversion of assets from any Employee Plan or related trust or (iii) require the Company to make any payments or provide any benefits that will be an “excess parachute payment” within the meaning of Section 280G of the Code. No Employee Plan maintained provides for the gross-up, indemnification or reimbursement of Taxes under Section 4999 or 409A of the Code, or otherwise.
(i) Other than as required by Each Employee Plan that is subject to Section 601 et. seq. of ERISA, Section 4980B 409A of the Code has been maintained in writing and operated, in all material respects, in compliance with Section 409A of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, Code.
(j) Each Employee Plan that is a health or other applicable Law (collectively, “COBRA”), no Benefit Plan provides post-termination or retiree health benefits to any individual for any reasonwelfare plan has terms that are in all material respects in compliance with, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. To the extent applicable, each Benefit Plan has been operated administered in compliance all material respects in accordance with, the requirements of the ACA. The Company and ERISA Affiliate has complied in all material respects with COBRA and other similar applicable Law.
(j) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has been the subject requirements of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
(k) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan that would increase the annual expense of maintaining such plan above the level Section 4980H of the expense incurred for Code, so as to avoid the most recently completed fiscal year with respect to imposition of any director, officer, employee, independent contractor material taxes or consultant, as applicable.
(l) Neither the assessable payments thereunder. The Company nor does not have any of its Affiliates has any commitment liability or obligation to provide postretirement health, medical or has made any representations life insurance benefits to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan.
(m) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Company to severance pay Company, or any other payment; (ii) accelerate the time of paymentspouse, funding dependent or vestingbeneficiary thereof, except as otherwise required under state or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to merge, amend or terminate any Benefit Plan; (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (v) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Codefederal benefits continuation laws.
(n) All Options have been duly authorized by the Company Board in compliance with the terms of the Stock Option Plan. No Options have been retroactively granted by the Company Board, nor has the exercise price of any such Option been determined retroactively.
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