Employee Benefit Plans (a) (i) Section 5.9(a)(i) of the Company Disclosure Schedules contains a list of each material “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), including multiemployer plans within the meaning of Section 3(37) of ERISA, and all stock purchase, stock option, severance, employment, change of control, bonus, incentive or deferred compensation, employee loan, collective bargaining, and each other material employee benefit plan, program or arrangement (whether or not subject to ERISA) under which any current or former employee, director or consultant of the Company or any of its Subsidiaries, with respect to the SMS Business, has any right to benefits and which is contributed to, sponsored or maintained by the Seller Parties, SunGard Capital or any of their respective Subsidiaries or under which the Company Entities, whether directly or by reason of their affiliation with any ERISA Affiliate, has any material liability, in each case as of the date hereof (each, a “SunGard Benefit Plan”), and (ii) Section 5.9(a)(ii) of the Company Disclosure Schedules contains a list of each SunGard Benefit Plan that is solely sponsored by the Company or a Company Subsidiary as of the date hereof (each, a “Company Benefit Plan”).
(b) With respect to each Company Benefit Plan, SunGard Data has made available to the Purchaser Parties copies of the following, to the extent applicable: (i) the plan document and any related trust agreement, (ii) the most recent IRS determination letter, (iii) the most recent summary plan description, and (iv) for the most recent plan year, the IRS Form 5500.
(c) Each Company Benefit Plan has been maintained, funded and administered in all material respects in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and other applicable Laws. Each Company Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS, and, to the Knowledge of the Company, no event or circumstance has occurred or failed to occur that would reasonably be expected to cause the loss of such qualification. No condition exists that would reasonably be expected to subject the Company Entities, either directly or by reason of their affiliation with any member of their “Controlled Group” (defined as any organization which is a member of a controlled group of organizations within the meaning of Sections 414(b), (c), (m) or (o) of the Code), to any material tax, fine, lien or penalty or other material liability imposed by ERISA, the Code or other applicable laws, rules, and regulations in connection with any “employee benefit plan” (within the meaning of Section 3(3) of ERISA). To the Knowledge of the Company, no nonexempt “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code) has occurred with respect to any SunGard Benefit Plan that would reasonably be expected to subject the Company Entities to any material liability. None of the Company Entities has incurred any current or projected material liability in respect of post-employment or post-retirement health, medical or life insurance benefits for any SMS Employee or former employee, director or consultant of the Company Entities, except as required to avoid an excise tax under Section 4980B of the Code or as may be required under any other applicable Law.
(d) Neither the Company Entities nor any of their ERISA Affiliates, sponsors, maintains or contributes to or has any obligation to contribute to, or at any time during the preceding six years, has sponsored, maintained or contributed to or had any obligation to contribute to, any retirement plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code (including a multiemployer plan within the meaning of Section 3(37) of ERISA) or any other defined benefit pension plan (a “Pension Plan”) and neither the Company Entities nor any of their ERISA Affiliates has any material liability under any Pension Plan that could reasonably be expected to become a liability of the Datatel Entities and their Affiliates.
(e) With respect to any Company Benefit Plan, (i) no actions, suits or claims (other than routine claims for benefits in the Ordinary Course of Business) are pending or, to the Knowledge of the Company, threatened that would result in a material Liability to the Company Entities, (ii) to the Knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims, and (iii) to the Knowledge of the Company, no administrative investigation, audit or other administrative proceeding by the Department of Labor, the IRS or any other Governmental Bodies are pending, in progress or threatened that, if adversely determined, individually or in the aggregate, have had or would reasonably be expected to have a Business Material Adverse Effect.
(f) Neither the execution, delivery or performance of this Agreement nor the consummation of the Transactions (whether alone or in connection with any other events(s)) will (i) accelerate the vesting or increase benefits or the amount payable under any SunGard Benefit Plan, (ii) cause any of the Company Entities to record additional compensation expense on its income statement with respect to any outstanding stock option or other equity-based award or (iii) result in payments under any of the SunGard Benefit Plans (1) which would not be deductible under Section 280G of the Code, or (2) which would result in any excise tax on any SMS Employee under Section 4999 of the Code or any other comparable Law.
(g) Except with respect to any employment agreement or other bilateral Contract with any current or former SMS Employee, to the extent permitted by applicable Law, each Company Benefit Plan is amendable and terminable unilaterally by the Company or its successor, at any time without liability to the Company (or its successor) and its Affiliates as a result thereof.
(h) This Section 5.9 and Section 5.4 represent the sole and exclusive representations and warranties of the Company regarding employee benefit matters.
Other Employee Benefit Plans During the Employment Period, except as otherwise expressly provided herein, the Executive shall be entitled to participate in all compensation, incentive, employee benefit, welfare and other plans, practices, policies and programs and fringe benefits on a basis no less favorable than that provided to any other executive officer of the Company.
Employee Benefit Plan Any employee benefit plan within the meaning of §3(3) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate, other than a Multiemployer Plan. Environmental Laws. See §7.18(a).
Employee Benefit Plans; ERISA (a) Except as previously disclosed to Parent and the Purchaser, (i) each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Fiduciaries of Employee Benefit Plan This Article does not apply to any Proceeding against any trustee, investment manager or other fiduciary of an employee benefit plan in that Person’s capacity as such, even though that Person may also be an Agent of the Trust as defined in Section 1 of this Article. Nothing contained in this Article shall limit any right to indemnification to which such a trustee, investment manager, or other fiduciary may be entitled by contract or otherwise which shall be enforceable to the extent permitted by applicable law other than this Article.
Employee Benefit Plans and Programs During the Employment Period, the Executive shall be treated as an employee of the Association and shall be entitled to participate in and receive benefits under any and all qualified or non-qualified retirement, pension, savings, profit-sharing or stock bonus plans, any and all group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance plans, and any other employee benefit and compensation plans (including, but not limited to, any incentive compensation plans or programs, stock option and appreciation rights plans and restricted stock plans) as may from time to time be maintained by, or cover employees of, the Association, in accordance with the terms and conditions of such employee benefit plans and programs and compensation plans and programs and consistent with the Association's customary practices.
Employee Benefit Plans and Compensation (a) For purposes of this Section 2.22, the following terms shall have the meanings set forth below:
Employee Benefits; ERISA (a) Schedule 3.10(a) of the Disclosure Schedule sets forth a true and complete list of each material, written profit-sharing, stock option, restricted stock option, deferred compensation, pension, severance, thrift, savings, incentive, change of control, employment, retirement, bonus, or equity-based, group life and health insurance or other employee benefit plan, agreement, arrangement or commitment, which is maintained, contributed to or required to be contributed to by any Company or any Company Subsidiary on behalf of any current or former employee, director or consultant of any Company or any Company Subsidiary, or by Seller on behalf of any Transferred Employee, or pursuant to which any current or former employee, director or consultant of any Company or Company Subsidiary or any Transferred Employee is eligible to receive benefits on account of service with Seller, its Subsidiaries, any Company or any Company Subsidiary (all of which are hereinafter referred to as the "Benefit Plans"). Schedule 3.10(a) of the Disclosure Schedule identifies each of the Benefit Plans which constitutes an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and identifies each of the Benefit Plans that are sponsored by or are otherwise obligations of the Company or any Company Subsidiary. None of the Companies or Company Subsidiaries has any formal commitment or intention communicated to employees, to create any additional Benefit Plan or materially modify or change any existing Benefit Plan.
(b) With respect to each of the Benefit Plans, Seller has made available to Buyer true and complete copies of each of the following documents, if applicable: (i) the plan document (including all amendments thereto); (ii) trust documents and insurance contracts; (iii) the annual report filed on Form 5500 for the last two years, if any; (iv) the actuarial report for the last two years, if any; (v) the most recent summary plan description, together with each summary of material modifications; (vi) the most recent determination letter received from the Internal Revenue Service; and (vii) any Form 5310 or Form 5330 filed with the Internal Revenue Service.
(c) Each Benefit Plan has been operated and administered substantially in accordance with its terms and with applicable law including, but not limited to, ERISA and the Code, and all notices, filings and disclosures required by ERISA or the Code (including notices under Section 4980B of the Code) have been timely made. Each Benefit Plan which is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA (a "Pension Plan") and which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service for "TRA" (as defined in Rev. Proc. 93-39), and, to the knowledge of Seller or the Companies, there are no circumstances that are likely to result in revocation of any such favorable determination letter. There is no pending or, to the knowledge of Seller or the Companies, threatened litigation relating to any of the Benefit Plans. None of Seller, any affiliate of Seller, the Companies or the Company Subsidiaries has engaged in a transaction with respect to any Benefit Plan that, assuming the taxable period of such transaction expired as of the date hereof, could subject any Company or any Company Subsidiary or any Benefit Plan to a Tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which could be material. No action has been taken with respect to any of the Benefit Plans to either terminate any of such Benefit Plans or to cause distributions, other than in the Ordinary Course of Business to participants under such Benefit Plans.
(d) No Benefit Plan is, and no benefit plan of any entity which is considered one employer with any Company or any Company Subsidiary under Section 4001 of ERISA or Section 414 of the Code is, or has been for the past six years, subject to Title IV of ERISA. No notice of a "reportable event", within the meaning of Section 4043 of ERISA for which the 30-day reporting requirement has not been waived, has been required to be filed for any Benefit Plan or by any ERISA Affiliate within the 12-month period ending on the date hereof.
(e) All contributions required to be made under the terms of any Benefit Plan have been timely made when due or have been reflected on the Final Year End Statements.
(f) Except as set forth in Schedule 3.10(f) of the Disclosure Schedule, none of the Companies nor any Company Subsidiary has any obligations for retiree health or life benefits other than coverage mandated by applicable law. The amounts accrued as of the date hereof by each Company and each Company Subsidiary in respect of such obligations as of the date hereof are adequate to satisfy such obligations, and the amounts accrued as of the Closing Date by each Company and each Company Subsidiary in respect of such obligations as of the Closing Date will be adequate to satisfy such obligations as of the Closing Date. There are no restrictions on the rights of any Company or any Company Subsidiary to amend or terminate any Benefit Plan without incurring Liability thereunder.
(g) Except as set forth in Schedule 3.10(g) of the Disclosure Schedule, neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will (or will upon termination of employment prior to or after the date hereof) (i) entitle any employee, director or consultant of any Company or any Company Subsidiary to severance pay or increase in severance pay, unemployment compensation or any other payment; (ii) accelerate the time of payment or vesting or funding (through a grantor trust or otherwise) or increase the amount of payment with respect to any compensation due to any employee, director or consultant; or (iii) meet the definition of a "Change in Control Event" or otherwise accelerate vesting of any award granted under the Seller's Performance Incentive Compensation Program.
Effect on Other Employee Benefit Plans The value of the Award subject to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating benefits under any employee benefit plan (other than the Plan) sponsored by the Company or any Affiliate except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any or all of the employee benefit plans of the Company or any Affiliate.
Employee Benefit Arrangements (i) All liabilities under the Employee Benefit Arrangements are (A) funded to at least the minimum level required by Law or, if higher, to the level required by the terms governing the Employee Benefit Arrangements, (B) insured with a reputable insurance company, (C) provided for or recognized in the financial statements most recently delivered to the Administrative Agent pursuant to Section 6.01 hereof or (D) estimated in the formal notes to the financial statements most recently delivered to the Administrative Agent pursuant to Section 6.01 hereof, where such failure to fund, insure, provide for, recognize or estimate the liabilities arising under such arrangements could reasonably be expected to have a Material Adverse Effect.
(ii) There are no circumstances which may give rise to a liability in relation to the Employee Benefit Arrangements which are not funded, insured, provided for, recognized or estimated in the manner described in clause (i) above and which could reasonably be expected to have a Material Adverse Effect.
(iii) Each of Parent and each of its Restricted Subsidiaries is in compliance with all applicable Laws, trust documentation and contracts relating to the Employee Benefit Arrangements (including pursuant to any applicable procedures under applicable Law, as appropriate), except as would not reasonably be expected to have a Material Adverse Effect.
