Employee Benefit Plans and Compensation. (a) Section 5.23(a) of the Company Disclosure Schedule 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” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA, which is or has been maintained, sponsored, contributed to, 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 Buyer or any of its Affiliates would reasonably be expected to have any Liability, contingent or otherwise (as listed on Section 5.23(a) of the Company Disclosure Schedule, each, a “Benefit Plan”). The Company has separately identified in Section 5.23(a) of the Company Disclosure Schedule (i) each Benefit Plan that contains a change in control provision and (ii) each Benefit Plan that is maintained, sponsored, contributed to, or required to be contributed to, by the Company primarily for the benefit of employees outside of the United States (a “Non-U.S. Benefit Plan”). (b) With respect to each Benefit Plan, the Company has made available to 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 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 IRS 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 (ix) copies of material notices, letters or other correspondence from the IRS, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan. (c) Each Benefit Plan and any 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 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 IRS 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 IRS 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 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, Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA or to Tax or penalty under Sections 4975 or 4980H of 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 and all applicable Laws and accounting principles, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved 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. (d) 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 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 (i) no such plan is a multiemployer plan within the meaning of Section 3(37) of ERISA (each 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 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 reporting requirement has not been waived has occurred with respect to any 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 Buyer, 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. (g) Other than as required under Sections 601 to 608 of ERISA or other applicable 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. (h) There is no pending or, to the Knowledge of the Company, threatened claim, action or proceeding 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. (i) 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 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. None of 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 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. (l) Except as set forth in Section 5.23(l) of the Company Disclosure Schedule, 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; or (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan.
Appears in 1 contract
Employee Benefit Plans and Compensation. (a) Section 5.23(a2.18(a) of the Company Disclosure Schedule contains a true complete and complete accurate list of each pensionemployment, benefitconsulting, compensation, incentive or deferred compensation, severance, relocation, retention, transaction, change in control, termination, retirement, pension, supplemental retirement, deferred compensation, employment, consultingexcess benefit, profit-sharing, deferred compensationbonus, incentive, bonus, performance award, stock option, restricted stock, deferred stock, phantom equity, stock or stock-basedother equity or equity- linked, change in controlsavings, retention, severancelife, vacation, paid time off (PTO)paid-time-off, cafeteria, insurance, flex spending, tuition, medical, visionhealth, dentalwelfare, disability, welfare, Code Section 125 cafeteriadeath, fringe benefit and or other similar agreementemployee compensation or benefit plan, planprogram, policy, program practice, commitment, agreement, arrangement or arrangement (and any amendments thereto)Contract, including, in each case whether or not reduced to writing and whether funded or unfundedcase, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and the ERISA (whether or not subject to ERISA, ) which is or has been maintained, sponsored, contributed to, participated in, sponsored by 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 Buyer the Company has or any of its Affiliates would reasonably be expected to have any LiabilityLiability or obligation, whether actual or contingent (collectively, the “Company Employee Plans”), provided that with respect to any Company Employee Plans that are employment agreements, offer letters, consulting agreement or otherwise (as similar agreements, that are terminable without penalty and without severance or change in control benefits, only forms thereof need be listed on Section 5.23(a2.18(a) of the Company Disclosure Schedule, each, a “Benefit Plan”). The Company has separately identified in Section 5.23(a) of the Company Disclosure Schedule (i) each Benefit Plan that contains a change in control provision and (ii) each Benefit Plan that is maintained, sponsored, contributed to, or required to be contributed to, by the Company primarily for the benefit of employees outside of the United States (a “Non-U.S. Benefit Plan”).
(b) With respect to each Benefit Plan, the The Company has made available to Buyer accurateAcquiror true, current correct and complete copies copies, as applicable, of each of the following: (i) where each Company Employee 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 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 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 three most recent determination, opinion or advisory letter from the IRS annual reports (Form Series 5500 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; attached thereto), if any, required to be filed in connection with each Company Employee Plan, (viiiii) actuarial valuations if the Company Employee Plan is funded, the most recent annual and reports related to any Benefit Plans with respect to the two most recently completed plan years; periodic accounting of such Company Employee Plan assets, (viiiiv) the most recent nondiscrimination tests performed under summary plan description together with the Code; summary(ies) of material modifications thereto, if any, (v) all material written agreements and contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts, (vi) all correspondence to or from any Governmental Entity relating to any Company Employee Plan other than routine correspondence in the normal course of operations of such Company Employee Plan, (vii) all forms of COBRA notices, (viii) policies pertaining to fiduciary liability insurance covering the fiduciaries for each Company Employee Plan, (ix) copies of material notices, letters or other correspondence from all discrimination tests for each Company Employee Plan for the IRS, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Each Benefit Plan and any 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 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 IRS with respect to the three most recent five plan years, (5)-year filing cycle, or with respect to a prototype or volume submitter plan, can rely on an opinion letter from the IRS 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(ax), respectively, of the Code, 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, Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA or to Tax or penalty under Sections 4975 or 4980H of 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 and all applicable Laws and accounting principles, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved 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.
(d) 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 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 (i) no such plan is a multiemployer plan within the meaning of Section 3(37) of ERISA (each 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 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 reporting requirement has not been waived has occurred with respect to any 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 Buyer, 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.
(g) Other than as required under Sections 601 to 608 of ERISA or other applicable 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.
(h) There is no pending or, to the Knowledge of the Company, threatened claim, action or proceeding 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.
(i) 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 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. None of 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 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.
(l) Except as set forth in Section 5.23(l) of the Company Disclosure Schedule, 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; or (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan.
Appears in 1 contract
Employee Benefit Plans and Compensation. (a) Section 5.23(a) of the Company Disclosure Schedule 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 Each “employee benefit plan” within the meaning of (as defined in Section 3(3) of ERISA) and each other pension, whether or not taxretirement, supplemental retirement, deferred compensation, excess benefit, profit sharing, bonus, incentive, stock purchase, stock ownership, stock option, stock appreciation right, profits interest, employment, severance, salary continuation, termination, change-qualified of-control, health, life, disability, group insurance, vacation, holiday and whether or not subject to ERISAfringe benefit plan, which is or has been maintainedprogram, sponsored, contributed tocontract, or required to be contributed to by the Company for the benefit of arrangement (whether written or unwritten, qualified or nonqualified, funded or unfunded and including any current that have been frozen 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 Buyer or any of its Affiliates would reasonably be expected to have any Liability, contingent or otherwise (as listed on Section 5.23(aterminated) of the Company Disclosure Schedule, each, a “Benefit Plan”). The Company has separately identified in Section 5.23(a) of the Company Disclosure Schedule (i) each Benefit Plan that contains a change in control provision and (ii) each Benefit Plan that is maintained, sponsored, contributed to, or required to be contributed to, by the Company primarily for and/or each ERISA Affiliate or with respect to which the benefit of employees outside of the United States Company and/or any ERISA Affiliate has any Liability (each, a “Non-U.S. Benefit Plan”), is set forth on Section 2.17(a) of the Disclosure Schedule.
(b) With As applicable with respect to each Benefit Plan, the Company has made available to Buyer accurate, current Parent true and complete copies of each of the following: (i) where the all Benefit Plan has been reduced to writingPlans, the plan including written summaries of Benefit Plans for which no written document together with all amendmentsexists, and related trust agreements, annuity contracts or other funding instruments; (ii) where the latest Internal Revenue Service determination letter or opinion letter obtained with respect to any such Benefit Plan has not been reduced intended to writingbe qualified or exempt under Section 401 or 501 of the Internal Revenue Code, a written summary of all material plan termsas applicable; (iii) where applicableForms 5500 and certified financial statements for the most recently completed fiscal year for each Benefit Plan required to file such form, copies of any trust agreements or other funding arrangementstogether with the most recent actuarial report, custodial agreementsif any, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in prepared by the future as a result of the transactions contemplated by this Agreement or otherwiseBenefit Plan’s enrolled actuary; (iv) copies of any all summary plan descriptions, descriptions and summaries of material modifications, summaries of benefits and coverage, COBRA communications, employee handbooks and any other written communications (or a description of any oral communications) relating to any modification for each Benefit Plan; (v) in the case of any all summaries furnished to employees or other service providers for all Benefit Plan that Plans for which a summary plan description 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 IRS and any legal opinions issued thereafter with respect to such Benefit Plan’s continued qualificationnot required; (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 written results of all compliance testing required pursuant to Sections 125, 401(a)(4), 401(k), 401(m), 410(b), 415, and 416 of the Code; and (ixvii) copies of material notices, letters or other correspondence from any non-routine filings made during the IRS, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other past three (3) years with a Governmental Authority relating to the a Benefit Plan.
(c) Each Benefit Plan Except as set forth on Section 2.17(c) of the Disclosure Schedule, the Company and any related trust has been established, administered and maintained in accordance with its terms and each ERISA Affiliate are in compliance in all material respects with all applicable Laws (including the provisions of ERISA, the Code and any other Laws applicable local Laws)to the Benefit Plans. Each Benefit Plan that is intended has been maintained, operated and administered in compliance in all material respects with its terms and any related documents or agreements and the applicable provisions of ERISA, the Code and other Laws.
(d) The Company Group has timely made all contributions and payments required 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 IRS made 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 IRS 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 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 orPlans and, with respect to any period on benefits accrued thereunder for which contributions or after the Closing Datepayments are not yet required to be made, Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA or to Tax or penalty under Sections 4975 or 4980H of the Code. All benefits, contributions and premiums relating to each Benefit Plan such obligations have been timely paid reflected in accordance with the terms of such Benefit Plan and all applicable Laws and accounting principles, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved 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.
(d) 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 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)Financial Statements.
(e) With respect There is no action, order, writ, injunction, judgment or decree outstanding or claim, suit, litigation, arbitral action, governmental audit or investigation or other Proceeding relating to each Benefit Plan (i) no such plan is a multiemployer plan within the meaning of Section 3(37) of ERISA (each 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 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 reporting requirement has not been waived has occurred with respect to any 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 Buyer, 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 seeking benefits under any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(g) Other than as required under Sections 601 to 608 of ERISA or other applicable 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.
(h) There is no pending or, to the Knowledge of the Company, threatened claimagainst either the Company, action a Company Subsidiary or proceeding relating to a Benefit Plan (any ERISA Affiliate other than routine claims for benefits).
(f) The Benefit Plans which are “employee pension benefit plans” (as defined in Section 3(2) of ERISA) and which are intended to meet the qualification requirements of Section 401(a) of the Code (each, a “Pension Plan”) have received determination letters or opinion letters on which such plan is entitled to rely from the Internal Revenue Service to the effect that such plans are qualified and exempt from federal income taxes under Sections 401(a) and 501(a) of the Code, respectively, and no each such Pension Plan is so qualified. No member of the Company Group or any ERISA Affiliate maintains, sponsors, contributes to or otherwise has any Liability (contingent or otherwise) with respect to any Pension Plan that is subject to Section 302 or Title IV of ERISA or Section 412 of the Code. Neither Company nor any each ERISA Affiliate has ever contributed to, or been required to contribute to any “multiemployer plan” (within the meaning of Section 3(37) of ERISA) and neither the Company nor any ERISA Affiliate has any liability (contingent or otherwise) relating to the withdrawal or partial withdrawal from a multiemployer plan.
(g) The Company and each ERISA Affiliate have complied with the notice and continuation coverage requirements of Section 4980B of the Code and the regulations thereunder with respect to each Benefit Plan has that is a group health plan within the three years prior meaning of Section 5000(b)(1) of the Code. No Benefit Plan provides benefits, including, without limitation, death or medical benefits, beyond termination of service or retirement other than coverage mandated by Section 4980B of the Code or other applicable Law.
(h) Except as set forth on Section 2.17(h) of the Disclosure Schedule, the Company’s execution of, and performance of the transactions contemplated by this Agreement will not either alone or in connection with any other event(s) (I) result in any payment becoming due to any employee, former employee, director, officer, or independent contractor of the date hereof been Company or any Subsidiary, (II) increase any amount of compensation or benefits otherwise payable under any Benefit Plan, (III) result in the subject acceleration of an examination the time of payment, funding or audit by a Governmental Authority vesting of any benefits under any Benefit Plan, (IV) require any contributions or payments to fund any obligations under any Benefit Plan or (V) limit the subject of an application right to merge, amend or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by terminate any Governmental AuthorityBenefit Plan.
(i) There has been no amendment toNo payment which is or may be made by, announcement by the Company from 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 Benefit Plan, to any employee, former employee, director, officer, employee, officer or independent contractor or consultant, as applicable. None of the Company nor Group, either alone or in conjunction with any other payment, event or occurrence, will or could reasonably be characterized as an “excess parachute payment” under Section 280G 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 or any collective bargaining agreementthe Code.
(j) Each Benefit Plan that is subject to constitutes a “non-qualified deferred compensation plan” within the meaning of Section 409A of the Code has been administered Code, complies in compliance both form and operation 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 so that no amounts paid pursuant to any such Benefit Plan is subject to tax under Section 409A of the Code.
(k) Each individual who is classified by The Company, the Company as an independent contractor has been properly classified Subsidiaries and each ERISA Affiliate have, for purposes of participation and benefit accrual under each Benefit Plan.
(l) Except as set forth in Section 5.23(l) of Plan and for all other purposes, correctly classified all individuals performing services for the Company Disclosure ScheduleGroup as common law employees, 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, employeeleased employees, independent contractor contractors or consultant of the Company to severance pay or any other payment; (ii) accelerate the time of paymentagents, 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; or (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Planas applicable.
Appears in 1 contract
Samples: Merger Agreement (Global Partner Acquisition Corp.)
Employee Benefit Plans and Compensation. (a) Section 5.23(aExcept as disclosed in SCHEDULE 2.22, Margate (a) of the Company Disclosure Schedule contains a true and complete list of each pensiondoes not maintain or contribute to any "employee benefit plan" as defined in ERISA, benefitincluding without limitation, retirement, compensation, employment, consulting, any profit-sharing, deferred compensation, incentivebonus, stock option, stock award, stock purchase or other equity-based compensation, severance, salary continuation, life insurance, bonus, performance awardemployment, phantom equityexecutive compensation, stock consulting, directors' benefit 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 agreementcompensation or incentive program, plan, policyagreement or arrangement, 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” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA, for which is or has been maintained, sponsored, contributed to, 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 Margate or any of its ERISA Affiliates subsidiaries has any obligation to or may have any Liability, or with respect to which Buyer or any of its Affiliates would reasonably be expected to have any Liabilityliability, contingent or otherwise and (as listed on Section 5.23(ab) does not maintain or contribute to any plan, policy or arrangement providing for fringe benefits to its employees, including but not limited to vacation, disability, sick leave, severance, pension, medical, hospitalization, life, insurance plans, or related or similar benefits (each, an "Employee Benefit Plan" and collectively, the "Employee Benefit Plans"). There are no negotiations, demands or proposals, which are now pending or have been made, which concern matters now covered, or that would be covered, by agreements or arrangements of the Company Disclosure Scheduletype described in this Section. Margate does not have any plan or commitment, eachwhether legally binding or not, a “to establish any new Employee Benefit Plan or to modify any Employee Benefit Plan”). The Company has separately identified in Section 5.23(a) of the Company Disclosure Schedule (i) each Benefit Plan that contains a change in control provision and (ii) each Benefit Plan that is maintained, sponsored, contributed to, or required to be contributed to, by the Company primarily for the benefit of employees outside of the United States (a “Non-U.S. Benefit Plan”).
(b) With respect to each Benefit Plan, the Company Margate has provided or made available to Buyer accurateB2B, current (i) correct and complete copies of all documents embodying each of the following: (i) where the Employee Benefit Plan has been reduced to writing, the plan document together with including all amendmentsamendments thereto and copies of all forms of agreement and enrollment used therewith; (ii) where the three most recent annual reports, if any, required under ERISA or the Code in connection with each Employee Benefit Plan has not been reduced to writing, a written summary of all material plan termsor related trust; (iii) where applicablethe most recent summary plan description together with the most recent summary of material modifications, copies of any trust agreements or other funding arrangementsif any, 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 otherwiseunder ERISA with respect to each Employee Benefit Plan; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits all IRS determination letters and coverage, COBRA communications, employee handbooks and any other written communications (or a description of any oral communications) rulings relating to any the Employee Benefit PlanPlans; (v) in the case of any Benefit Plan that is intended all material agreements and contracts relating to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the IRS each Employee Benefit; 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; all communications material to any employee or employees relating to any Employee Benefit Plan and (ix) copies any proposed Employee Benefit Plans, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of material notices, letters payments or vesting schedules or other correspondence from the IRS, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating events which would result in any material liability to the Benefit PlanMargate.
(c) Each Margate has performed all material obligations required to be performed by it under each Employee Benefit Plan and any related trust each Employee Benefit Plan has been established, administered established and maintained in accordance with its terms and in material compliance with all applicable Laws (laws, statutes, orders, rules and regulations, including ERISA, the Code ERISA 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 IRS 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 IRS 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 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, Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA or to Tax or penalty under Sections 4975 or 4980H of the Code. All benefitsThere are no actions, contributions and premiums relating to each Benefit Plan have been timely paid in accordance with the terms of such Benefit Plan and all applicable Laws and accounting principlessuits or claims pending, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved 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.
(d) 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 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 (i) no such plan is a multiemployer plan within the meaning of Section 3(37) of ERISA (each 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 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 reporting requirement has not been waived has occurred with respect to any 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 Buyer, 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.
(g) Other than as required under Sections 601 to 608 of ERISA or other applicable 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.
(h) There is no pending or, to the Knowledge knowledge of the Company, Margate threatened claim, action or proceeding relating to a Benefit Plan anticipated (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 ) against any Governmental Authority.
(i) 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 Employee Benefit Plan or collective bargaining agreement that would increase against the annual expense assets of maintaining such plan above any Employee Benefit Plan. There are no inquiries or proceedings pending or, to the level knowledge of Margate, threatened by the expense incurred for the most recently completed fiscal year (other than on a de minimis basis) IRS or Department of Labor with respect to any directorEmployee Benefit Plan, officer, employee, independent contractor or consultant, as applicable. None of the Company nor any of its Affiliates has any commitment or obligation or has made any representations and Margate is not subject to any director, officer, employee, independent contractor penalty or consultant, whether or not legally binding, tax with respect to adopt, amend, modify or terminate any Employee Benefit Plan under ERISA 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.
(kd) 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 5.23(l) of the Company Disclosure Schedule, neither the The execution of this Agreement nor any and the consummation of the transactions contemplated by this Agreement hereby will not constitute an event under any Employee Benefit Plan or trust that will or may result in any payment (either alone or upon the occurrence whether 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 otherwise), acceleration, forgiveness of paymentindebtedness, funding or vesting, distribution, increase in benefits or increase the amount of compensation (including stock-based compensation) due obligation to fund benefits with respect to any such individual; (iii) limit or restrict the right of the Company 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 Planemployee.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Margate Industries Inc)
Employee Benefit Plans and Compensation. (a) Section 5.23(aPLANS - Subsection 4.15(a) of the Company ServiceSoft Disclosure Schedule contains a true and complete list of each pension"employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, benefitas amended ("ERISA")), retirementemployee welfare benefit plan" (as defined in Section 3(l) of ERISA), and any plan, agreement or program providing for pensions, retirement income, deferred compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equitybonuses, stock options, stock appreciation or stock-basedother forms of incentive compensation that (i) is entered into, change maintained or contributed to, as the case may be, by ServiceSoft or any ServiceSoft Subsidiaries and (ii) covers any employee or former employee of ServiceSoft or any ServiceSoft Subsidiaries (collectively "SERVICESOFT BENEFIT ARRANGEMENTS"). Each ServiceSoft Benefit Arrangement (and each related trust insurance contract or fund) has been maintained and administered in controlmaterial compliance with its terms and with the requirements prescribed by ERISA, retentionthe Code and all other statutes, severancelaws, vacationordinances and regulations which are applicable thereto. The requirements of the consolidated Omnibus Budget Reconciliation Act of 1985, paid time off as amended (PTO)"COBRA") have been met with respect to each ServiceSoft Benefit Arrangement which is an employee welfare benefit plan under Section 3(l) of ERISA. All required reports and descriptions (including Form 5500 Annual Reports, summary annual reports, PBGCI's and summary plan descriptions) have been timely filed and distributed appropriately with respect to each such ServiceSoft Benefit Arrangement. No ServiceSoft Benefit Arrangement has unfunded liabilities that, as of the Closing, will not be offset by insurance or fully accrued or reserved against in the ServiceSoft Balance Sheet. Except to the extent required under COBRA, ServiceSoft and the ServiceSoft Subsidiaries does not maintain, contribute to, or have any liability or obligation to contribute to any funded or unfunded medical, visionhealth or life insurance plan or similar arrangement for present or future retirees, dentaltheir spouses or dependents or present or future terminated employees, disabilitytheir spouses or dependents. No ServiceSoft Benefit Arrangement has applied for or received a waiver of the minimum funding standards imposed by Section 412 of the Code, 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” no ServiceSoft Benefit Arrangement has an "accumulated funding deficiency" within the meaning of Section 3(3412(a) of the Code as of the most recent plan year. Each ServiceSoft Benefit Arrangement subject to Title IV of ERISA has paid all premiums when due to the Pension Benefit Guaranty Corporation. ("PBGC"). ServiceSoft and the ServiceSoft Subsidiaries have not incurred, and none of the directors and officers (and employees with responsibility for employee benefits matters) of ServiceSoft and the ServiceSoft Subsidiaries have any reason to expect that they will incur, any liability to the PBGC (other than PBGC premium payments) or otherwise under Title IV of ERISA (including any withdrawal liability as defined in Section 4201 of ERISA) or under the Code with respect to any such ServiceSoft Benefit Arrangement which is an employee pension benefit plan under Section 3(2) of ERISA, whether . Except as required by law or not tax-qualified and whether or not subject to ERISA, which is or has been maintained, sponsored, contributed to, or required to be contributed to by the Company for the benefit provisions of any current or former employeesuch ServiceSoft Benefit Arrangement, officer, director, retiree, independent contractor or consultant of the Company no condition exists that would prevent ServiceSoft or any spouse ServiceSoft Subsidiaries from amending or dependent of such individual, or under which the Company or terminating any of its 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 5.23(a) of the Company Disclosure Schedule, each, a “ServiceSoft Benefit Plan”). The Company has separately identified in Section 5.23(a) of the Company Disclosure Schedule (i) each Benefit Plan that contains a change in control provision and (ii) each Benefit Plan that is maintained, sponsored, contributed to, or required to be contributed to, by the Company primarily for the benefit of employees outside of the United States (a “Non-U.S. Benefit Plan”)Arrangement.
(b) With respect to each Benefit Plan, the Company has made available to 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 Except as disclosed 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 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(asubsection 4.15(b) of the CodeServiceSoft Disclosure Schedule, a copy there are no investigations by any governmental agency, termination proceedings or other claims (except claims for benefits payable in the normal operation of the most recent determinationServiceSoft Benefit Arrangements), opinion suits or advisory letter from proceedings against or involving any ServiceSoft Benefit Arrangement that would result in material liability against ServiceSoft and the IRS and ServiceSoft Subsidiaries or any legal opinions issued thereafter with respect to such ServiceSoft Benefit Plan’s continued qualification; (vi) Arrangement. Except as disclosed 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 (ix) copies of material notices, letters or other correspondence from the IRS, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Each Benefit Plan and any 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 local Laws). Each Benefit Plan that is intended to be qualified within the meaning of Section 401(asubsection 4.15(b) of the Code (a “Qualified ServiceSoft Disclosure Schedule, the ServiceSoft Benefit Plan”) is so Arrangements that are pension benefit plans have received determination letters from the Internal Revenue Service to the reflect that such ServiceSoft Benefit Arrangements are qualified and received a favorable and current determination letter from the IRS 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 IRS 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 Federal income Taxes taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing no such determination letter has occurred been revoked nor, to the knowledge of Sellers, has revocation been threatened, nor are there any facts that could reasonably be expected to result in any such revocation, nor has any such ServiceSoft Benefit Arrangement been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect the qualified status of any Qualified Benefit Planits qualification. 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, Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA or to Tax or penalty under Sections 4975 or 4980H of 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 and all applicable Laws and accounting principles, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved 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.
(d) 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 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 (i) no such plan is a multiemployer plan within the meaning of Section 3(37) of ERISA (each 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” No "prohibited transaction" (as defined in Section 3(404975 of the Code or Section 406 of ERISA) has occurred which involves the assets of any ServiceSoft Benefit Arrangement and which could subject any employees of ServiceSoft and the ServiceSoft Subsidiaries, a trustee, administrator or other fiduciary of any trusts created under any ServiceSoft Benefit Arrangement to the tax or penalty on prohibited transactions imposed by Section 4975 of the Code or the sanctions imposed under Title I of ERISA. No fiduciary has any liability for breach of fiduciary duty or any other failure to at or comply in connection with the administration or investment of the assets of any ServiceSoft Benefit Arrangement. Except as disclosed in subsection 4.15(b) of ERISA); the ServiceSoft Disclosure Schedule, none of the ServiceSoft Benefit Arrangements have been terminated nor have there been any "reportable events" (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, ERISA and the regulations thereunder) with respect thereto. The execution of this Agreement and the consummation of the transaction contemplated hereby will not result in the acceleration or early vesting of any payments or benefits under any ServiceSoft Benefit Arrangement or in the payment of any "excess parachute payments" within the meaning of Section 280G of the Code.
(c) ServiceSoft and the ServiceSoft Subsidiaries are not a members of a controlled group of corporations, within the meaning of Section 414(b) of the Code, are not members of a group of trades or businesses under common control, within the meaning of Section 414(c) of the Code, and are not members of an affiliated service group, within the meaning of Section 414(m) and (o) of the Code. ServiceSoft and the ServiceSoft Subsidiaries do not contribute to, never have contributed to, and never have been required to which the reporting requirement has not been waived has occurred with respect contribute to any such multiemployer plan (as defined in Section 3(37) of ERISA) and none of them has any liability (including withdrawal liability as defined in Section 4201 of ERISA) under any multiemployer plan.
(fd) Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing NO POST-EMPLOYMENT OBLIGATIONS - Except as set forth in accordance with its terms, without material liabilities to Buyer, 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 subsection 4.15(d) of the transactions contemplated by this Agreement ServiceSoft Disclosure Schedule, no ServiceSoft Benefit Arrangement provides, or otherwise.
(g) Other than as required under Sections 601 has any liability to 608 of ERISA provide, life insurance, medical or other applicable Law, no Benefit Plan provides post-termination or retiree health employee benefits to any individual employee upon his or her retirement or termination of employment for any reason, except as may be required by law, and neither the Company ServiceSoft nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or the ServiceSoft Subsidiaries have ever represented, promised or contracted (whether in oral or written form) to any individual employee (either individually or to employees as a group) that such individual employee(s) would be provided with post-life insurance, medical or other employee welfare benefits upon their retirement or termination or retiree health benefitsof employment, except to the extent required by law.
(he) There EMPLOYMENT MATTERS - ServiceSoft has delivered to Balisoft a complete list of all current employees of ServiceSoft and the ServiceSoft Subsidiaries and their position, gross remuneration and length of employment. To the Knowledge of ServiceSoft, ServiceSoft and the ServiceSoft Subsidiaries: (i) are in compliance in all material respects with all applicable foreign, federal and provincial laws, rules and regulations respecting employment, employment practices, terms and conditions of employment and wages and hours, in each case, with respect to employees; (ii) have withheld all amounts required by law or by agreement to be withheld from the wages, salaries and other payments to employees; (iii) are not liable for any arrears of wages or any Taxes or any penalty for failure to comply with any of the foregoing; and (iv) except as required by applicable law, are not liable for any payment to any trust or other fund or `to any governmental or administrative authority, with respect to unemployment compensation benefits, social security or other benefits for employees (other than routine payments to be made in the normal course of business and consistent with past practice).
(f) LABOR - Except as set forth in subsection 4.15(f) of the ServiceSoft Disclosure Schedule, neither ServiceSoft nor any of the ServiceSoft Subsidiaries are involved in or threatened with any labor dispute, grievance, litigation or claim relating to labor, occupational health and safety or human rights matters involving any employee, including, without limitation, charges of unfair labor practices or discrimination complaints, which, if adversely determined, would, individually or in the aggregate, result in liability having a material adverse effect on ServiceSoft and the ServiceSoft Subsidiaries, taken as a whole. Neither ServiceSoft nor any of the ServiceSoft Subsidiaries have engaged in any unfair labor practices which would, individually or in the aggregate, directly or indirectly result in liability to ServiceSoft or any of the ServiceSoft Subsidiaries. Except as set forth in subsection 4.15(f) of the ServiceSoft Disclosure Schedule, neither ServiceSoft nor any of the ServiceSoft Subsidiaries are presently, nor have they been in the past, a party to, or bound by, any collective bargaining agreement or union contract with respect to employees and no collective bargaining agreement is no pending being negotiated by ServiceSoft or any of the ServiceSoft Subsidiaries or, to the Knowledge of the CompanyServiceSoft, threatened claim, action or proceeding 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 is being organized or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authoritythreatened.
(i) 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 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. None of 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 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.
(l) Except as set forth in Section 5.23(l) of the Company Disclosure Schedule, 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; or (iv) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan.
Appears in 1 contract
Samples: Combination Agreement (Servicesoft Technologies Inc)
