Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a) of the Company Disclosure Letter lists, with respect to the Company and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangements, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”). (b) The Company has made available to Acquirer’s counsel a true, correct and complete copy of each of the Company Employee Plans and related plan documents. The Company does not sponsor or maintain any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy applies. (c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law and the Company has complied with the requirements of COBRA. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No Company Employee Plan is covered by, and neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor. (d) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code. (e) Neither the Company nor ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code. (f) No Company Employee Plan is sponsored, maintained or contributed to under the law or applicable custom or rule of the any jurisdiction outside of the United States. (g) The Company is in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice. The Company is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Company has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice). (h) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Exponential Interactive, Inc.)
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(aThe Company has provided or made available to Acquiror (or Acquiror’s Representatives) a list of the names (where permitted by law), titles, annual salaries (or wage rates for non-salaried employees) and other compensation of all employees of the Company and the Company Subsidiaries.
(b) Section 2.16(b) of the Company Disclosure Letter listssets forth, with respect to the Company and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Codedate hereof, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974each deferred compensation and each bonus, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock optionincentive compensation, stock purchase, phantom stockstock option and other equity compensation plan, stock appreciation rightprogram, supplemental retirement, severance, sabbaticalagreement or arrangement; each severance or termination pay, medical, dentalsurgical, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code)hospitalization, life insurance and other “welfare” plan, fund or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangements, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”).
(b) The Company has made available to Acquirer’s counsel a true, correct and complete copy of each of the Company Employee Plans and related plan documents. The Company does not sponsor or maintain any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy applies.
(c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law and the Company has complied with the requirements of COBRA. There has been no “prohibited transaction” program (within the meaning of Section 406 3(1) of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutesERISA); each profit-sharing, rules and regulations (including ERISA and the Code)stock bonus or other “pension” plan, and the Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under fund or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No Company Employee Plan is covered by, and neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan program (within the meaning of Section 3(2) of ERISA); and any other material employee benefit plan, fund, program, agreement or arrangement, in each case, that is currently sponsored, maintained or contributed to or required to be contributed to by the Company or any Company Subsidiary, or to which the Company or any Company Subsidiary, is party, for the benefit of any employee of the Company or any Company Subsidiary (collectively, the “Company Employee Plans”). A true and complete copy of each Company Employee Plan has been provided or made available to Acquiror (or Acquiror’s Representatives).
(c) Section 2.16(c) of the Company Disclosure Letter sets forth, and the Acquiror has been provided a copy of, each employment, termination or severance agreement (other than agreements customarily entered into with employees in jurisdictions other than the United States providing the statutory minimum termination notice period or severance benefits, in which is case the form of such agreement has been provided or made available to Acquiror (or Acquiror’s Representatives)) with an employee (or former employee, to the extent obligations of the Company remain outstanding) of the Company or any Company Subsidiary and any service agreement with any independent contractor.
(d) Neither the Company nor any of the Company Subsidiaries, nor any other entity with which the Company would be considered under common control under ERISA, does now, or did at any time in the past, sponsor, maintain or contribute to any plan subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or a multiemployer plan, as defined in Section 412 3(37) of ERISA. No liability under Title IV or Section 302 of ERISA has been incurred by the CodeCompany with respect to a Company Employee Plan that has not been satisfied in full, and no condition exists that presents a risk to Acquiror of incurring any such liability with respect to a Company Employee Plan. No non-U.S. Company Employee Plan is a defined benefit plan.
(e) Neither the Company nor ERISA Affiliate is a party toany Company Subsidiary has any current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) current employees of ERISA the Company or any “multiple employer plan” Company Subsidiary, except as such term is defined in required to avoid excise tax under Section 413(c) 4980B of the CodeCode or similar local, state or non-U.S. laws.
(f) No There are no loans outstanding from the Company Employee Plan is sponsored, maintained or contributed any Company Subsidiary to under the law any employee or applicable custom or rule of the any jurisdiction outside of the United Statesdirector.
(g) The Company is Except as set forth in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice. The Company is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any Section 2.16(g) of the foregoing. The Company has paid in full to all employeesDisclosure Letter, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice).
(h) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement (whether alone or together with another event, such as a termination of employment) will not (i) entitle any employee or officer of the Company or any termination of employment or service Company Subsidiary to severance pay, unemployment compensation or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payablepayment, or required to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of accelerate the time of paymentpayment or vesting, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due or require any funding of any future payment, any such employee or officer.
(h) Except as set forth in Section 2.16(h) of the Company Disclosure Letter, there is no Contract, plan or arrangement (written or otherwise) covering any employee or former employee of the Company or any Company Subsidiary that, individually or collectively, could give rise to the payment of any Personamount that would not be deductible pursuant to the terms of Section 280G of the Code.
(i) There are no pending, or (v) result in to the forgiveness in whole Knowledge of the Company, threatened claims by or in part on behalf of any outstanding loans made Company Employee Plan, by any employee or beneficiary covered under any such Company Employee Plan (other than routine claims for benefits) and each Company Employee Plan has been established and maintained in all material respects in accordance with applicable Legal Requirements.
(j) Each Company Employee Plan has been operated in all material respects in accordance with its terms and applicable Legal Requirements.
(k) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service, or has pending or has time remaining in which to file, an application for such letter from the Internal Revenue Service, and the Company is not aware of any reason why any such letter should be revoked or not be reissued. The Company has made available to Buyer copies of the most recent Internal Revenue Service determination and/or opinion letters with respect to each such Company Employee Plan.
(l) Section 2.16(l) of the Company Disclosure Letter lists, as of the date hereof, all collective bargaining agreements, union contracts and similar agreements in effect that cover any Personemployees of the Company or any Company Subsidiary (each, a “Collective Bargaining Agreement”).
(m) There is no labor strike, lockout or stoppage pending or, to the Knowledge of the Company, threatened against the Company or any Company Subsidiary.
(n) The Company and the Company Subsidiaries are in compliance in all material respects with all Legal Requirements respecting employment and employment practices, terms and conditions of employment, wages and hours, and worker classification.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Affymetrix Inc), Merger Agreement (Affymetrix Inc)
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a) of the Company Disclosure Letter lists, as of the Agreement Date, with respect to the Company and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, each Subsidiary (i) all “material employee benefit plans” plans (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), (ii) each loan to an employee, (iii) other than the Company Option Plan, all material stock option, stock purchase, phantom stock, stock appreciation right, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iviii) all material bonus, pension, profit sharing, savings, severance, retirement, or deferred compensation plans or programs, or other material written incentive plans, plans or programs or arrangements, (viv) all other material fringe or employee benefit plans, programs or arrangements, and (viv) all any material employment or executive service agreements (except for offer letters providing for at-will employment that do not provide for severance, acceleration or post-termination benefits) compensation agreements, change in control agreements or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain for the benefit of, or relating to, any present or former employeedirector, officer, employee or consultant or non-employee director (provided that, for former directors, officers, employees and consultants, such agreements need only be listed if unsatisfied obligations of the Company or any Subsidiary of greater than $10,000 remain thereunder) and (vi) any other material written or oral arrangement for the benefit of any employee under which the Company or any Subsidiary has or may have material liability, contingent or otherwise (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”).
(b) Neither the Company nor any Subsidiary sponsors or maintains any self-funded employee benefit plan providing health or medical benefits, including any plan to which a stop-loss policy applies. The Company has made available to Acquirer’s counsel Acquirer (or will make available to Acquirer within ten (10) Business Days following the date of this Agreement) a true, correct and complete copy of each of the Company Employee Plans and related plan documents (including trust documents, insurance policies or Contracts, employee booklets, summary plan descriptions and other authorizing documents, and any material employee communications relating thereto) and has, with respect to each such Company Employee Plan that is subject to ERISA reporting requirements, the Company has made available to Acquirer true, correct and complete copies of the Form 5500 reports filed for the last three (3) plan years. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code or has applied (or has time remaining in which to apply) to the Internal Revenue Service for such a determination letter prior to the expiration of the requisite period under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination or has been established under a standardized prototype plan for which an Internal Revenue Service opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer. The Company does not sponsor has made available to Acquirer (or maintain any self-funded Company Employee Planwill make available to Acquirer within ten (10) Business Days following the date of this Agreement) a true, including, without limitation, any plan correct and complete copy of the most recent Internal Revenue Service determination or opinion letter issued with respect to which a stop-loss policy appliesthe Company’s 401(k) plan.
(c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) ), or similar state law and the Company has complied with the requirements of COBRAlaw. There has been no material “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each In all material respects, each Company Employee Plan has been administered in accordance with its material terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations Applicable Laws (including ERISA and the Code), ) and (ii) the Company and each ERISA Affiliate Subsidiary has performed all obligations required to be performed by it under, and is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. Neither of the Company, nor any Subsidiary, is subject to any material Liability or penalty under Sections 4976 through 4980 of the Code or Title I of ERISA with respect to any Company Employee Plans. In all material respects, all contributions required to be made by the Company or any Subsidiary to any Company Employee Plan have been made and/or a reasonable amount has been accrued for contributions to each Company Employee Plan for the current plan years. No Company Employee Plan is covered by, and neither none of the Company nor Company, any Subsidiary and any ERISA Affiliate has have incurred or expects expect to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without material Liability to Acquirer (other than ordinary and reasonable administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim Legal Proceeding has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor, that, in each case, would result in material liability to the Company and the Subsidiaries.
(d) Neither None of the Company nor Company, any Subsidiary and any current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or within the past six (6) years has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which that is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(e) Neither None of the Company nor Company, any Subsidiary and any ERISA Affiliate is a party to, or within the past six (6) years, has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code.
(f) No Except as otherwise set forth on Schedule 2.11(f) of the Company Disclosure Letter, no Company Employee Plan is sponsored, maintained or contributed to under the law or applicable custom or rule of the any jurisdiction outside of the United States.
(g) The To the knowledge of the Company, the Company and each Subsidiary is in compliance in all material respects with all currently applicable Applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and, with respect to each Company Employee Plan, (i) the applicable health care continuation and notice provisions of COBRA and the regulations thereunder, (ii) the applicable requirements of the Family Medical and Leave Act of 1993 and the regulations thereunder, (iii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations thereunder, (iv) the applicable requirements of the Americans with Disabilities Act of 1990, as amended and the regulations thereunder, (v) the Age Discrimination in Employment Act of 1967, as amended, and (vi) the applicable requirements of the Women’s Health and Cancer Rights Act of 1998 and the regulations thereunder. Neither the Company nor any Subsidiary is not engaged in any unfair labor practice. The Neither the Company nor any Subsidiary is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Aside from any amounts due in the current payroll or invoice cycle and obligations that are not material in amount, the Company and each Subsidiary has paid in full to all employees, independent contractors and consultants all earned wages, salaries, commissions, bonuses, benefits and other compensation currently due to or on behalf of such employees, independent contractors and consultants. The Neither the Company is not liable nor any Subsidiary has any material unpaid liability for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal ordinary course of business and consistently consistent with past practice). To the knowledge of the Company, there are no pending claims against the Company and/or any Subsidiary under any workers compensation plan or policy or for long-term disability. Neither the Company nor any Subsidiary has any obligations under COBRA with respect to any former employees or qualifying beneficiaries thereunder, except for obligations that are not material in amount. There are no material controversies pending or, to the knowledge of the Company, threatened, between the Company or any Subsidiary and any of their respective current or former employees, which material controversies have or would reasonably be expected to result in a Legal Proceeding before any Governmental Entity.
(h) Neither the Company nor any Subsidiary is a party to or bound by any collective bargaining agreement, works council arrangement or other labor union Contract, no collective bargaining agreement is being negotiated by the Company or any Subsidiary and neither the Company nor any Subsidiary has any duty to bargain with any labor organization. There is no pending demand for recognition or any other request or demand from a labor organization for representative status with respect to any Person employed by the Company or any Subsidiary. To the knowledge of the Company, there are no activities or proceedings of any labor union or to organize their respective employees. There is no labor dispute, strike or work stoppage against the Company or any Subsidiary pending or, to the knowledge of the Company, threatened that may interfere with the conduct of the Business. Neither the Company nor any Subsidiary, to the knowledge of the Company, any of its or any Subsidiary’s Representatives has committed any unfair labor practice in connection with the conduct of the Business, and there is no charge or complaint against the Company or any Subsidiary by the National Labor Relations Board or any comparable Governmental Entity pending or, to the knowledge of the Company, threatened.
(i) To the knowledge of the Company, no employee of the Company or any Subsidiary is in violation of any term of any employment agreement, non-competition agreement or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company or any Subsidiary because of the nature of the Business or to the use of trade secrets or proprietary information of others. To the knowledge of the Company, no contractor of the Company or any Subsidiary is in violation of any term of any non-competition agreement or any restrictive covenant to a former employer relating to the right of any such contractor to be providing services to the Company or any Subsidiary because of the nature of the Business or to the use of trade secrets or proprietary information of others. Except as set forth on Schedule 2.11(i) of the Company Disclosure Letter, the employment of each of the employees of the Company and each Subsidiary is “at will” (except for non-United States employees of the Company located in a jurisdiction that does not recognize the “at will” employment concept) and neither the Company nor any Subsidiary has any obligation to provide any particular form or period of notice prior to terminating the employment of any of their respective employees, except for any particular form or period of notice required by Applicable Law or as set forth in employment agreements with non-U.S. employees of the Company or any Subsidiary.
(j) Within thirty (30) days following the full execution of this Agreement, the Company shall provide to Acquirer and each Subsidiary, showing (unless prohibited by Applicable Law) each such individual’s name, position, annual remuneration rate, status as exempt/non-exempt (for U.S. employees) and bonus eligibility for the current fiscal year and bonus(es) paid for the most recently completed fiscal year. In addition, the Company will provide the additional following information for each of its international employees: city/country of employment, citizenship, date of hire, and manager’s name and work location. Within thirty (30) days following the full execution of this Agreement, the Company shall provide to Acquirer a true, correct and complete list of all of its consultants, advisory board members and independent contractors who are individuals and, for each, (i) such individual’s compensation rate, (ii) such individual’s initial date of engagement, (iii) whether such engagement has been terminated by written notice by either party thereto and (iv) the notice or termination provisions applicable to the services provided by such individual.
(k) There are no written performance improvement plans or disciplinary warnings in place with respect to any of the executives of the Company or any Subsidiary.
(l) The Company and each Subsidiary is in compliance in all material respects with the Worker Adjustment Retraining Notification Act of 1988, as amended (the “WARN Act”), or any similar applicable state or local law. In the past two (2) years, (i) neither the Company nor any Subsidiary has not effectuated a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of its business, (ii) there has not occurred a “mass layoff” (as defined in the WARN Act) affecting any site of employment or facility of the Company or any Subsidiary and (iii) neither the Company nor any Subsidiary has been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any applicable similar state, local or foreign law or regulation. Neither the Company nor any Subsidiary has caused any of its employees to suffer an “employment loss” (as defined in the WARN Act) during the 90-day period immediately preceding the Agreement Date.
(m) Except as required pursuant to or contemplated by an Offer Letter, none of the execution and delivery of this Agreement nor Agreement, the consummation of the transactions Merger or any other transaction contemplated by this Agreement or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, event (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultantPerson, (ii) materially increase the amount or value of otherwise enhance any benefit benefits or compensation otherwise payable or required to be provided to by the Company or any current or former employee, director, independent contractor or consultantSubsidiary, (iii) result in the acceleration of the time of payment, payment or vesting or funding of any such benefit or compensationbenefits, except as required under Section 411(d)(3) of the Code, (iv) materially increase the amount of compensation due to any Person, Person or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company or any Subsidiary to any Person.
Appears in 2 contracts
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a2.12(a) of the Company Disclosure Letter listslists each material employee benefit, with respect to the Company and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b)fringe benefit, (c)supplemental unemployment benefit, (m) or (o) of the Codebonus, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974incentive, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental restricted stock unit, retirement, severancesavings, sabbaticalpension, medical, dental, vision care, disability, employee relocationlife insurance, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance and similar plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangements, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain arrangements for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company that is maintained, sponsored, contributed to, or required to be contributed to, by the Company, whether written or oral, funded or unfunded, insured or self-insured, registered or unregistered and under which the Company may have any liability contingent or otherwise, other than benefit plans established pursuant to statute (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”).
(b) The Company has made available delivered to Acquirer’s counsel Acquirer a true, correct and complete copy of each of the written Company Employee Plans and (or if oral, written summaries thereof) as amended as of the date hereof, together with all material related plan documents (including trust documents, insurance policies or Contracts, employee booklets, and any material employee communications relating thereto). The Company does not sponsor or maintain any Company Employee Plan that is self-funded Company Employee Plan, including, without limitation, any plan or to which a stop-stop loss policy applies.
(c) None of the Company Employee Plans is or is intended to be a “registered pension plan”, a “deferred profit sharing plan”, a “retirement compensation arrangement”, a “registered retirement savings plan”, a “tax-free savings account” or a “pooled registered pension plan” as such terms are defined in the Tax Act. None of the Company Employee Plans promises or provides retiree or post-termination medical or other retiree welfare benefits to any person other than retired or terminated employees or to the beneficiaries or dependents of retired employees, except as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended by Applicable Law.
(“COBRA”d) or similar state law and the Company has complied with the requirements of COBRA. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered and operated in accordance material compliance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate has performed all obligations Applicable Laws. All contributions required to be performed made by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No to any Company Employee Plan is covered by, have been made on or before their due dates in accordance with the terms of each Company Employee Plan and neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the CodeApplicable Laws. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time Closing in accordance with its terms, without Liability to Acquirer (other than ordinary and reasonable administrative expenses typically incurred in a termination event). No Other than routine claims for benefits, no suit, administrative proceeding, action, litigation litigation, claim or claim has been broughtany other proceeding initiated by any Person is pending, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department . All employee data necessary to administer each Company Employee Plan in accordance with its terms and conditions and all Applicable Laws is in possession of Labor.
(d) Neither the Company nor current or its agents and such data is materially complete, correct, and in a form which is sufficient for the proper administration of each Company Employee Plan. Only employees or former ERISA Affiliate currently maintainsemployees (or any spouses, sponsorsdependents, participates in survivors or contributes to, beneficiaries of any such employees or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2former employees) of ERISA) which the Company are entitled to participate in the Company Employee Plans and no entity other than the Company is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Codea participating employer under any Company Employee Plan.
(e) Neither There has been no amendment to, written interpretation or announcement (whether or not written) by the Company nor ERISA Affiliate is a party relating to, or has made any contribution to change in participation or otherwise incurred any obligation coverage under, any “multiemployer plan” as Company Employee Plan that would materially increase the expense of maintaining such term is defined Company Employee Plan above the level of expense incurred with respect to such Company Employee Plan for the most recent full fiscal year included in Section 3(37) of ERISA the Financial Statements. No insurance policy or any “multiple employer plan” as other agreement affecting any Company Employee Plan requires or permits a retroactive increase in contributions, premiums or other payments due thereunder. The level of reserves under each Company Employee Plan which provides group benefits and contemplates the holding of such term reserves is defined in Section 413(c) of the Codereasonable and sufficient to provide for all incurred but unreported claims.
(f) No Except as required pursuant to or contemplated by an Offer Letter, the execution and delivery of, and performance by the Company of, this Agreement and the consummation of the Transactions will not (i) accelerate the time of payment or vesting under any Company Employee Plan is sponsoredPlan, maintained (ii) result in an obligation to fund (through a trust or contributed otherwise) any compensation or benefits under any Company Employee Plan, (iii) increase any amount payable under any Company Employee Plan, or (iv) result in the acceleration of any other material obligation pursuant to under the law or applicable custom or rule of the any jurisdiction outside of the United StatesCompany Employee Plan.
(g) The Company is in compliance in all material respects with all currently applicable Legal Requirements Applicable Law respecting employment, discrimination in employmentincluding, terms and conditions of employmentbut not limited to, worker classification (including the proper classification of workers as independent contractors and consultants, and the Company has not received any notice from any Governmental Entity disputing such classification), wages, overtime, pay equity, immigration, human rights, hours of work and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and safety. The Company is not engaged in any unfair labor practicepractice and there is no unfair labor practice complaint, grievance or arbitration proceeding pending, or threatened against the Company. The Company is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Company has accrued or paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, sick days, vacation with pay, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security employment insurance or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice). There are no pending workers compensation or long term disability claims against the Company. There are no claims, complaints, investigations or other controversies pending or, to the knowledge of the Company, threatened, between the Company and any of its employees, which controversies have or would reasonably be expected to result in a Legal Proceeding before any Governmental Entity.
(h) The Company has provided to Acquirer true, correct and complete copies of each of the following: (i) all forms of offer letters; (ii) all forms of employment agreements and severance agreements; (iii) all forms of services agreements and agreements with current and former consultants and/or advisory board members; (iv) all forms of confidentiality, non-competition or inventions agreements between current and former employees/consultants and the Company or any Subsidiary (and a true, correct and complete list of employees, consultants and/or others not subject thereto); (v) the most current management organization chart(s); (vi) all forms of bonus plans and any form award agreement thereunder; and (vii) a schedule of bonus commitments made to employees of the Company. All offer letters and agreements between the current and former employees or consultants and the Company are in the same forms as those provided to Acquirer by the Company.
(i) The Company is not a party to or bound by any collective bargaining agreement, employee association or works council arrangement or other labor union Contract, no collective bargaining agreement is being negotiated by the Company and the Company does not have any duty to bargain with any labor organization. There is no pending demand for recognition or any other request or demand from a labor organization for representative status with respect to any Person employed by the Company. To the knowledge of the Company, there are no threatened or pending activities or proceedings of any labor union or attempts to organize the Company’s employees. There is no labor dispute, strike, work slowdown or work stoppage against the Company pending or, to the knowledge of the Company, threatened that may interfere with the conduct of the Business and no such event has occurred within the last three (3) years. Neither the execution Company nor, to the knowledge of the Company, any of its Representatives has committed any unfair labor practice in connection with the conduct of the Business, and there is no charge or complaint against the Company by any Governmental Entity pending or, to the knowledge of the Company, threatened. No trade union has applied to have the Company declared a common or related employer pursuant to the Labour Relations Act (Ontario) or any similar legislation in any jurisdiction in which the Company carries on business. Except as set forth in Schedule 2.12(i) of the Company Disclosure Letter, no employee of the Company has been dismissed in the 12 months immediately preceding the Closing Date.
(j) Schedule 2.12(j) of the Company Disclosure Letter sets forth each non-competition agreement and non-solicitation agreement entered into by the Company with any current or former employee or contractor of the Company. To the knowledge of the Company, no employee of the Company is in violation of any term of any employment agreement, non-competition agreement or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company because of the nature of the Business or to the use of trade secrets or proprietary information of others. To the knowledge of the Company, no contractor of the Company is in violation of any term of any non-competition agreement or any restrictive covenant to a former employer relating to the right of any such contractor to be providing services to the Company because of the nature of the Business or to the use of trade secrets or proprietary information of others. Except as set forth on Schedule 2.12(j) of the Company Disclosure Letter, no employee of the Company has given notice of termination to the Company and, to the knowledge of the Company, no employee of the Company intends to terminate his or her employment with the Company. Except as set forth on Schedule 2.12(j) of the Company Disclosure Letter, no employee of the Company has any agreement as to length of notice or severance payment required to terminate his or her employment, other than such as results by Law from the employment of an employee without agreement as to notice or severance. As of the Closing Date, the Company has not (i) entered into any Contract that obligates or purports to obligate Acquirer to make an offer of employment to any present or former employee or consultant of the Company and/or (ii) promised or otherwise provided any assurances (contingent or otherwise) to any present or former employee or consultant of the Company of any terms or conditions of employment with Acquirer following the Closing.
(k) Schedule 2.12(k)(i) of the Company Disclosure Letter sets forth a true, correct and complete list of all officers, directors and employees of the Company, showing (without names or employee numbers) each such individual’s position, annual remuneration (including rate of pay or annual salary and any other compensation payable to them, including housing allowances, transportation allowances, compensation payable pursuant to bonus, deferred compensation or commission arrangements or other compensation) for the current fiscal year, location of employment, cumulative length of employment, overtime eligibility, status as part-time or full-time employee, whether subject to a written employment agreement, any vacation or paid time off entitlement in days and the accrued and unused days of such vacation or paid time off as of the Closing Date, and any promises made to them with respect to changes or additions to their compensation or benefits. Schedule 2.12(k)(ii) of the Company Disclosure Letter sets forth a true, correct and complete list of all of its consultants, advisory board members and independent contractors and, for each, (i) such individual’s compensation, (ii) such individual’s initial date of engagement, (iii) whether such engagement has been terminated by written notice by either party thereto, (iv) the notice or termination provisions (if any) applicable to the services provided by such individual and (v) in the case of independent contractors, such individual’s job function.
(l) Schedule 2.12(l) of the Company Disclosure Letter contains an accurate and complete list as of the Closing Date of all loans and advances made by the Company to any employee, director, consultant or individual independent contractor, other than routine travel advances made to employees in the ordinary course of business.
(m) There are no performance improvements or disciplinary actions contemplated or pending against any of the Company’s employees.
(n) Except as disclosed in Schedule 2.12(n) of the Company Disclosure Letter, there is no current employee of the Company who is not fully available to perform work because of disability or other leave.
(o) In the past two years, there has not occurred a mass termination (as defined in the Employment Standards Act, 2000 and applicable provincial employment standards legislation) within the Company.
(p) Except as required pursuant to or contemplated by an Offer Letter, none of the execution, delivery and performance of this Agreement nor Agreement, the consummation of the transactions contemplated by this Agreement or Transactions, any termination of employment or service or and any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, event (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultantconsultant except as disclosed in Schedule 2.12(j) or Schedule 2.12(k) of the Company Disclosure Letter, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, Person or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person.
(q) There are no outstanding assessments, penalties, fines, liens, charges, surcharges, or other amounts due or owing pursuant to any workplace safety and insurance legislation and the Company has not been reassessed in any material respect under such legislation during the past three years and, to the knowledge of the Company, no audit of the Company is currently being performed pursuant to any applicable workplace safety and insurance legislation. There are no claims which may materially adversely affect the Company’s accident cost experience in respect of the Business.
(r) There are no charges pending under applicable occupational health and safety legislation in any jurisdiction in which the Company carries on business. The Company has complied in all material respects with any orders issued under applicable occupational health and safety legislation and there are no appeals of any such orders currently outstanding.
(s) True and complete copies of all work permits and labour market impact assessment opinion confirmation relating to employees of the Company have been made available to Acquirer. The Company is in compliance with all terms and conditions of the work permits and the labour market assessment confirmations. No audit by a Governmental Authority is being conducted or, to the knowledge of the Company, pending in respect of any foreign workers.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Yelp Inc)
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a) of the Company Disclosure Letter lists, with respect to the Company and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the CodeSubsidiary, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each loan to an employee, (iiiii) other than the Company Option Plan, all stock option, stock purchase, free shares plan, phantom stock, stock appreciation right, restricted stock unit, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code)benefit, dependent care (Section 129 of the Code)care, life insurance or accident insurance plans, programs or arrangements, (iviii) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangements, arrangements and (vi) all employment employment, individual consulting, retention, change of control or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”). Neither the Company nor any of its Subsidiaries has, or has ever had, an employee located in, or citizen or resident of, the United States of America.
(b) The Company has made available to Acquirer’s counsel Acquirer a true, correct and complete copy of each of the Company Employee Plans and related plan documents. The Company does not sponsor or maintain any self-funded Company Employee Planemployee benefit plan, including, without limitation, including any plan to which a stop-loss policy applies. The Company has made available to Acquirer a true, correct and complete copy of each of the Company Employee Plans and related plan documents (including trust documents, insurance policies or Contracts, employee booklets, summary plan descriptions and other authorizing documents, and any material employee communications relating thereto). The Company has made available to Acquirer all registration statements and prospectuses prepared in connection with each Company Employee Plan. All individuals who, pursuant to the terms of any Company Employee Plan, are entitled to participate in any Company Employee Plan, are currently participating in such Company Employee Plan or have been offered an opportunity to do so and have declined in writing.
(c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits are subject to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) amended, or similar state law and the Company has complied with the requirements Employee Retirement Income Security Act of COBRA. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan1974, as amended. Each Company Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code)regulations, and the Company and each ERISA Affiliate Subsidiary has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No All contributions required to be made by the Company or any Subsidiary to any Company Employee Plan is covered by, have been made on or before their due dates and neither the Company nor ERISA Affiliate a reasonable amount has incurred or expects been accrued for contributions to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each each Company Employee Plan can for the current plan years (and no further contributions will be amendeddue or will have accrued thereunder as of the Closing Date, terminated or otherwise discontinued other than contributions accrued in the ordinary course of business consistent with past practice after the Effective Time in accordance with its terms, without Liability to Acquirer (other than ordinary administrative expenses typically incurred in Company Balance Sheet Date as a termination eventresult of the operations of the Company after the Company Balance Sheet Date). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) Neither There has been no amendment to, written interpretation or announcement (whether or not written) by the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes any Subsidiary relating to, or has ever maintained, established, sponsored, participated in, change in participation or contributed tocoverage under, any pension plan (within Company Employee Plan that would materially increase the meaning expense of Section 3(2) maintaining such Company Employee Plan above the level of ERISA) which is subject expense incurred with respect to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of such Company Employee Plan for the Codemost recent full fiscal year included in the Financial Statements.
(e) Neither the Company nor ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code.
(f) No Company Employee Plan is sponsored, maintained or contributed to under the law or applicable custom or rule of the any jurisdiction outside of the United StatesFrance.
(gf) The Company is in compliance in all material respects with all currently applicable Legal Requirements Applicable Law respecting employment, discrimination in employment, terms and conditions of employment, employee benefits, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and . The Company is not engaged in any unfair labor practice. The Company is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Company has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice). There are no pending claims against the Company under any workers compensation plan or policy or for long term disability. There are no controversies pending or, to the knowledge of the Company, threatened, between the Company and any of its employees, which controversies have or would reasonably be expected to result in a Legal Proceeding before any Governmental Entity.
(g) The Company has made available to Acquirer true, correct and complete copies of each of the following: (i) all forms of offer letters, (ii) all forms of employment agreements and severance agreements, (iii) all forms of services agreements and agreements with current and former consultants and/or advisors, (iv) all forms of confidentiality, non-competition or inventions agreements between current and former employees/consultants and the Company or any Subsidiary (and a true, correct and complete list of employees, consultants and/or others not subject thereto), (v) the most current management organization chart(s), (vi) all forms of bonus plans and any form award agreement thereunder and (vii) a schedule of bonus commitments made to employees of the Company.
(h) Schedule 2.11(h) of the Company Disclosure Letter sets forth each collective bargaining agreement, works council arrangement or other labor union Contract to which the Company is a party to or bound by, no collective bargaining agreement is being negotiated by the Company and the Company does not have any duty to bargain with any labor organization. There is no pending demand for recognition or any other request or demand from a labor organization for representative status with respect to any Person employed by the Company. To the knowledge of the Company, there are no activities or proceedings of any labor union or to organize their respective employees. There is no labor dispute, strike or work stoppage against the Company pending or, to the knowledge of the Company, threatened that may interfere with the conduct of the Business. Neither the execution Company nor, to the knowledge of the Company, any of its Representatives has committed any unfair labor practice in connection with the conduct of the Business, and there is no charge or complaint against the Company by any Governmental Entity pending or, to the knowledge of the Company, threatened. No employee of the Company has been dismissed in the 12 months immediately preceding the Agreement Date.
(i) Schedule 2.11(i) of the Company Disclosure Letter sets forth each non-competition agreement and non-solicitation agreement that binds any current or former employee or contractor of the Company (other than those agreements entered into with newly hired employees of the Company in the ordinary course of business consistent with past practice). No employee of the Company is in violation of any term of any employment agreement, non-competition agreement or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company because of the nature of the Business or to the use of trade secrets or proprietary information of others. Except as set forth on Schedule 2.11(i) of the Company Disclosure Letter, no contractor of the Company is in violation of any term of any non-competition agreement or any restrictive covenant to a former employer relating to the right of any such contractor to be providing services to the Company because of the nature of the Business or to the use of trade secrets or proprietary information of others. Except as set forth on Schedule 2.11(i) of the Company Disclosure Letter, no employee of the Company has given notice to the Company and, to the knowledge of the Company, no employee of the Company intends to terminate his or her employment with the Company. Except as set forth on Schedule 2.11(i) of the Company Disclosure Letter, the Company does not have any obligation to provide any particular form or period of notice prior to terminating the employment of any of their respective employees. As of the Agreement Date, the Company has not, and to the knowledge of Company, no other Person has, (i) entered into any Contract that obligates or purports to obligate Acquirer to make an offer of employment to any present or former employee or consultant of the Company and/or (ii) promised or otherwise provided any assurances (contingent or otherwise) to any present or former employee or consultant of the Company of any terms or conditions of employment with Acquirer following the Closing.
(j) Schedule 2.11(j)(i) of the Company Disclosure Letter sets forth a true, correct and complete list of the names, positions and rates of compensation of all officers, directors and employees of the Company, showing each such individual’s name, position, annual remuneration, status as exempt/non-exempt and bonuses and fringe benefits for the current fiscal year and the most recently completed fiscal year. Schedule 2.11(j)(ii) of the Company Disclosure Letter sets forth the additional following information for each of its international employees: city/country of employment, citizenship, date of hire, manager’s name and work location, date of birth, any material special circumstances (including pregnancy, disability or military service), and whether the employee was recruited from a previous employer. Schedule 2.11(j)(iii) of the Company Disclosure Letter sets forth a true, correct and complete list of all of its consultants, advisory board members and independent contractors and, for each, (i) such individual’s compensation, (ii) such individual’s initial date of engagement, (iii) whether such engagement has been terminated by written notice by either party thereto and (iv) the notice or termination provisions applicable to the services provided by such individual.
(k) There are no performance improvements or disciplinary actions contemplated or pending against any of the Company’s employees.
(l) The Company has not (i) implemented a collective redundancy plan (plan de sauvegarde de l’emploi) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of its business and (ii) been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of regulation collective redundancy plan.
(m) Except as required pursuant to or contemplated by an Employee Document, none of the execution, delivery and performance of this Agreement nor Agreement, the consummation of the transactions contemplated by this Agreement or Transactions, any termination of employment or service or and any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, event (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, Person or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Marin Software Inc)
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a2.13(a) of the Company Disclosure Letter lists, with respect to the Company and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Codeits Subsidiaries, (i) all “"employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ," (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code)benefit, dependent care (Section 129 of the Code)care, life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangementsarrangements that apply to senior management and that do not generally apply to all employees, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company or any of its Subsidiaries of greater than $500 remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company or such Subsidiary (all of the foregoing described in clauses (i) through (vi), collectively, the “"Company Employee Plans”").
(b) The Company has made available to Acquirer’s counsel a true, correct . Correct and complete copy copies of each of all material documentation relating to the Company Employee Plans and related plan documents. The Company does not sponsor or maintain any self-funded Company Employee Planhave been provided to Acquirer prior to the Agreement Date, including, without limitation, (i) the last three (3) Form 5500s prepared and filed for each Company Employee Plan established and maintained for TIG, Inc. (including all schedules and attachments, together with any applicable Form 5558 (Extension of Time to File)), and (ii) copies of all coverage and nondiscrimination tests applicable to each Company Employee Plan for the last three (3) plan to which a stop-loss policy applies.
(c) None years, as and if applicable. Each Company Employee Plan is in compliance with its terms and the provisions of the Legal Requirements (including without limitation the provisions of ERISA and the Code with respect to TIG, Inc.) of each jurisdiction in which such Company Employee Plan is maintained, to the extent those Legal Requirements are applicable to such Company Employee Plan, (i) there are no pending investigations by any governmental body involving such Company Employee Plan, and no pending claims (except for claims for benefits payable in the normal operation of such Company Employee Plan), suits or proceedings against such Company Employee Plan or asserting any rights or claims to benefits under such Company Employee Plan, (ii) the consummation of the transactions contemplated by this Agreement will not by itself create or otherwise result in any Liability with respect to such Company Employee Plan, and (iii) except as required by applicable Legal Requirements, no condition exists that would prevent the Company from terminating or amending any Company Employee Plan at any time for any reason in accordance with the terms of each such Company Employee Plan without the payment of any fees, costs or expenses (other than the payment of benefits under such Company Employee Plans and any normal and reasonable expenses typically incurred in a termination event). All governmental agency filings required to be made on behalf of all Company Employee Plans have been timely executed and filed. With respect to any Company Employee Plan established, maintained or sponsored by or on behalf of TIG, Inc., (i) none of such Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“"COBRA”") or similar state law and TIG, Inc. has complied, and the Company has complied caused TIG, Inc. to comply, with the requirements of COBRA. There , (ii) there has been no “"prohibited transaction” " (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the such Company Employee Plans. No Company Employee Plan is covered by, and (iii) neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
, and (eiv) Neither neither the Company nor any ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “"multiemployer plan” " as such term is defined in Section 3(37) of ERISA or any “"multiple employer plan” " as such term is defined in Section 413(c) of the Code.
(f) No Company Employee Plan is sponsored, maintained or contributed to under the law or applicable custom or rule . Each of the any jurisdiction outside of the United States.
(g) The Company and its Subsidiaries is in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, practices and is not engaged in any unfair labor practice. The Company has withheld all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to employees; and is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Each of the Company and its Subsidiaries has maintained adequate up-to-date records regarding the service of its employees and has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Neither the Company nor any of its Subsidiaries is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice).
. There is no litigation or controversies pending or, to the knowledge of the Selling Shareholders, threatened, between the Company or any of its Subsidiaries and any of its respective employees or any trade union or other organization formed for a similar purpose or any other employee representative(s), which controversies have or would reasonably be expected to result in an action, suit, proceeding, claim, arbitration or governmental investigation and, to the knowledge of the Selling Shareholders, there are no circumstances which are likely to give rise to such litigation or controversies. With respect to each Company Employee Plan, appropriate and adequate arrangements have been put in place to ensure that all requirements in relation to the deduction of income tax and social security contributions at source, including making such deductions as are required by law and duly accounting to the relevant Tax Authority for all such sums so deducted, are properly complied with in respect to any outstanding options or awards granted under such Company Employee Plan. There is no issue (hincluding the expiry of any award, enterprise agreement or other instrument made or approved under law) which may lead to industrial action by employees or any industrial organization of employees which may reasonably be expected to disrupt the business of the Company or cause it to incur material financial expenditure. Schedule 2.13(g) of the Disclosure Letter sets forth a true, correct and complete list as of the Agreement Date of all severance Contracts and employment Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound. True, up-to-date and complete copies of a representative sample of the contracts of employment between the Company and its Subsidiaries and each category of its employees has been disclosed to the Acquirer and are set forth in Schedule 2.13(g), together with copies of all consultancy agreements, secondment agreements, agreements relating to contract or agency staff, or other similar agreements or arrangements currently in force to which the Company or any of its Subsidiaries is a party. Neither the Company nor any of its Subsidiaries has any obligation to pay any amount or provide any benefit to any former employee or officer, other than obligations (i) for which Company has established a reserve for such amount on the Company Balance Sheet, (ii) pursuant to Contracts entered into after the Company Balance Sheet Date and disclosed on Schedule 2.13(g) of the Disclosure Letter, or (iii) as required by applicable law. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining agreement or other labor union Contract or staff association agreement, no collective bargaining agreement is being negotiated by the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries has any duty to bargain with any labor organization. There is no pending demand for recognition or any other request or demand from a labor organization for representative status with respect to any Person employed by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has knowledge of any activities or proceedings of any labor union or to organize their respective employees. There is no labor dispute, strike or work stoppage against the Company or any of its Subsidiaries pending or, to the knowledge of the Selling Shareholders, threatened which may interfere with the respective business activities of the Company or any of its Subsidiaries. Neither the Company, any Subsidiary of the Company, nor to the knowledge of the Selling Shareholders any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the Business. To the knowledge of the Selling Shareholders, no employee of the Company or any of its Subsidiaries is in violation of any term of any employment agreement, non-competition agreement, or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company or any Subsidiary because of the nature of the Business or to the use of trade secrets or proprietary information of others. Except as set forth on Schedule 2.13(h) of the Disclosure Letter, no employee of the Company or any of its Subsidiaries has given notice to the Company or such Subsidiary or is under a notice of dismissal, nor does the Company or such Subsidiary otherwise have knowledge, that any such employee intends to terminate his or her employment with the Company or such Subsidiary. The employment of the employees of the Company or any of its Subsidiaries is "at will", except for those employees employed outside the U.S., and neither the Company nor any of its Subsidiaries has any obligation to provide any particular form or period of notice prior to terminating the employment of any of its employees, except as set forth on Schedule 2.13(h) of the Disclosure Letter or except as required under applicable Legal Requirements outside the U.S. As of the date hereof, other than the Offer Letters, neither the Company nor any of its Subsidiaries (i) entered into any Contract that obligates or purports to obligate Acquirer to make an offer of employment to any present or former employee or consultant of the Company or such Subsidiary and/or (ii) promised or otherwise provided any assurances (contingent or otherwise) to any present or former employee or consultant of the Company or any of its Subsidiaries of any terms or conditions of employment with Acquirer following the Closing Date. Schedule 2.13(h)(i) of the Disclosure Letter sets forth a true, correct and complete list of the names, positions, rates of compensation and pensions of all officers, directors, and employees of the Company and its Subsidiaries, showing each such person's name, name of employing company, date of birth, position, annual base salary, notice period (if any), date of commencement of employment and details of any other emoluments (in whatever form, including non-cash benefits) other than those created under Company Employee Plans or as otherwise required by applicable Legal Requirements. There are no employees who work in the business carried on by the Company than the employees set out in Schedule 2.13(h)(i) of the Disclosure Letter. Schedule 2.13(h)(ii) of the Disclosure Letter sets forth the names of all employees who have entered into employment arrangements that differ materially from the standard form of employment agreement or arrangement used by the Company and provided to Acquirer. Neither the Company nor any Subsidiary received any notices, prosecutions or fines in respect of any breach or alleged breach of occupational health and safety laws or standards within the three (3) years prior to the Agreement Date. Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person. All employees of the Company or any of its Subsidiaries whose employment is governed by an industrial award are paid not less than the relevant award terms. Within a period of one year prior to the date of this Agreement: (i) no change has been made in the terms of employment or engagement of any employee of the Company or any of its Subsidiaries other than in the ordinary course of business and no such change, and no negotiation or request for such changes is due or expected within twelve (12) months from the Agreement Date; and (ii) neither the Company nor any of its Subsidiaries had any arrangements planned or in progress for dismissing any of its employees by reason of redundancy or business reorganization or has started consultations with any trade union or other employee representatives in relation to any proposed redundancies.
Appears in 1 contract
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a2.13(a) of the Company Disclosure Letter lists, with respect to the Company and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangementsarrangements that apply to senior management and that do not generally apply to all employees, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company of greater than $1,000 remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”). Correct and complete copies of all material documentation relating to the Company Employee Plans have been provided to Acquirer prior to the Agreement Date.
(b) The Company has made available to Acquirer’s counsel a true, correct and complete copy of each of the Company Employee Plans and related plan documents. The Company does not sponsor or maintain any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy applies.
(c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law and the Company has 30- complied in all material respects with the requirements of COBRA. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in all material respects in accordance with its terms and in material compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate has performed in all material respects all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No Company Employee Plan is covered by, and neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(dc) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(ed) Neither the Company nor ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code.
(fe) No Each Company Employee Plan is sponsored, maintained or contributed to under the law or applicable custom or rule of the any relevant jurisdiction outside of the United StatesStates (each such plan, a “Foreign Plan”) is listed in Schedule 2.13(e) of the Company Disclosure Letter. Each Foreign Plan, is in compliance in all material respects with its terms and the provisions of the Legal Requirements of each jurisdiction in which such Foreign Plan is maintained, to the extent those Legal Requirements are applicable to such Foreign Plan, (ii) there are no pending investigations by any governmental body involving such Foreign Plan, and no pending claims (except for claims for benefits payable in the normal operation of such Foreign Plan), suits or proceedings against such Foreign Plan or asserting any rights or claims to benefits under such Foreign Plan, (vi) the consummation of the transactions contemplated by this Agreement will not by itself create or otherwise result in any Liability with respect to such Foreign Plan, and (vii) except as required by applicable Legal Requirements, no condition exists that would prevent the Company from terminating or amending any Foreign Plan at any time for any reason in accordance with the terms of each such Foreign Plan without the payment of any fees, costs or expenses (other than the payment of benefits accrued on the Company balance sheet and any normal and reasonable expenses typically incurred in a termination event.
(gf) The Company is in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice. The Company has withheld all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to employees; and is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Company has maintained adequate up-to-date records regarding the service of its employees and has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice). There is no litigation or controversies pending or, to the knowledge of the Company, threatened, between the Company and any of its employees or any trade union or other organization formed for a similar purpose or any other employee representative(s), which controversies have or would reasonably be expected to result in an action, suit, proceeding, claim, arbitration or governmental investigation and, to the knowledge of the Company, there are no circumstances which are likely to give rise to such litigation or controversies.
(g) Schedule 2.13(g) of the Company Disclosure Letter sets forth a true, correct and complete list as of the Agreement Date of all severance Contracts and employment Contracts to which the Company is a party or by which the Company is bound. The Company has no obligation to pay any amount or provide any benefit to any former employee or officer, other than obligations (i) for which Company has established a reserve for such amount on the Company Balance Sheet and (ii) pursuant to Contracts entered into after the Company Balance Sheet Date and disclosed on Schedule 2.13(g) of the Company Disclosure Letter. The Company is not a party to or bound by any collective bargaining agreement or other labor union Contract, no collective bargaining agreement is being negotiated by the Company, and the Company has no duty to bargain with any labor organization. There is no pending demand for recognition or any other request or demand from a labor organization for representative status with respect to any Person employed by the Company. The Company has no knowledge of any activities or proceedings of any labor union to organize its employees. There is no labor dispute, strike or work stoppage against the Company pending or, to the knowledge of the Company, threatened which may interfere with the business activities of the Company. Neither the Company, nor to the knowledge of the Company any of its representatives or employees, has committed any unfair labor practice in connection with the operation of the Business, and there is no charge or complaint against the Company by the National Labor Relations Board or any comparable Governmental Entity pending or to the knowledge of the Company, threatened.
(h) To the knowledge of the Company, no employee of the Company is in violation of any term of any employment agreement, non-competition agreement, or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company because of the nature of the Business or to the use of trade secrets or proprietary information of others. Except as set forth on Schedule 2.13(h) of the Company Disclosure Letter, no employee of the Company has given notice to the Company or is under a notice of dismissal, nor does the Company have knowledge, that any such employee intends to terminate his or her employment with the Company. The employment of the employees of the Company is “at will” and the Company has no obligation to provide any particular form or period of notice prior to terminating the employment of any of its employees, except as set forth on Schedule 2.13(h) of the Company Disclosure Letter. As of the date hereof, the Company has not (i) entered into any Contract that obligates or purports to obligate Acquirer to make an offer of employment to any present or former employee or consultant of the Company and/or (ii) promised or otherwise provided any assurances (contingent or otherwise) to any present or former employee or consultant of the Company of any terms or conditions of employment with Acquirer following the Closing Date.
(i) Schedule 2.13(i) of the Company Disclosure Letter sets forth a true, correct and complete list of the names, positions and rates of compensation of all officers, directors, and employees of the Company, showing each such person’s name, position, annual base salary, target bonus and target commissions, status as exempt/non-exempt, for the current fiscal year and the most recently completed fiscal year.
(j) The Company has provided to Acquirer a true, correct and complete list of all of its consultants, advisory board members and independent contractors and for each the initial date of the engagement and whether the engagement has been terminated by written notice by either party.
(k) The Company has provided to Acquirer’s counsel true, correct and complete copies of each of the following: all forms of offer letters; all forms of employment agreements and severance agreements; all forms of services agreements and agreements with current and former consultants and/or advisory board members; all forms of confidentiality, non-competition or inventions agreements between current and former employees/consultants and the Company (and a true, correct and complete list of employees, consultants and/or others not subject thereto); the most current management organization chart(s); all agreements and/or insurance binders, which insurance binders shall provide a complete and correct summary of the underlying insurance policies, providing for the indemnification of any officers or directors of the Company and a summary of Liability for termination payments to current and former directors, officers and employees of the Company.
(l) The Company has delivered to Acquirer true and complete copies of all election statements under Section 83(b) of the Code that are in the Company’s possession with respect to any unvested securities or other property issued by the Company or any ERISA Affiliate to any of their respective employees, non-employee directors, consultants and other service providers.
(m) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person. No amount paid or payable by the Company in connection with the transactions contemplated by this Agreement, whether alone or in combination with another event, will be an “excess parachute payment” within the meaning of Code Section 280G or Code Section 4999 or will not be deductible by the Company by reason of Code Section 280G. Schedule 2.13(m) of the Company Disclosure Letter lists each Person who the Company reasonably believes is, with respect to the Company and/or any ERISA Affiliate, a “disqualified individual” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder).
Appears in 1 contract
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a2.13(a) of the Company Disclosure Letter lists, with respect to the Company or its Subsidiaries and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangementsarrangements that apply to senior management and that do not generally apply to all employees, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company or any of its Subsidiaries of greater than $1,000 remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company or such Subsidiary (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”). Correct and complete copies of all material documentation relating to the Company Employee Plans have been made available to Acquirer prior to the Agreement Date.
(b) The Company has made available to Acquirer’s counsel a true, correct and complete copy of each of the Company Employee Plans and related plan documents. The Company does not sponsor or maintain any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy applies.
(c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law and the Company has complied in all material respects with the requirements of COBRA. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in all material respects in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No Company Employee Plan is covered by, and neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer Buyer (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(dc) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(ed) Neither the Company nor ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code.
(fe) No Each Company Employee Plan is sponsored, maintained or contributed to under the law or applicable custom or rule of the any relevant jurisdiction outside of the United StatesStates (each such plan, a “Foreign Plan”) is listed on Schedule 2.13(e) of the Company Disclosure Letter. Since inception, neither the Company nor any ERISA Affiliate has sponsored, maintained or contributed to or has any Liability with respect to a Foreign Plan.
(gf) The Each of the Company and its Subsidiaries is in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice. The Each of the Company and its Subsidiaries has withheld all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to employees; and is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Each of the Company and its Subsidiaries has maintained adequate up-to-date records regarding the service of its employees and has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Neither the Company nor any of its Subsidiaries is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice). There is no litigation or controversies pending or, to the knowledge of the Company, threatened, between the Company or any of its Subsidiaries and any of their respective employees or any trade union or other organization formed for a similar purpose or any other employee representative(s), which controversies have or would reasonably be expected to result in an action, suit, proceeding, claim, arbitration or governmental investigation and, to the knowledge of the Company, there are no circumstances which are likely to give rise to such litigation or controversies.
(g) Schedule 2.13(f) of the Company Disclosure Letter sets forth a true, correct and complete list as of the Agreement Date of all severance Contracts and employment Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound that is currently in effect or under which the Company has Liabilities. Neither the Company nor any of its Subsidiaries has any obligation to pay any amount or provide any benefit to any former employee or officer, other than obligations (i) for which Company has established a reserve for such amount on the Company Balance Sheet and (ii) pursuant to Contracts entered into after the Company Balance Sheet Date and disclosed on Schedule 2.13(g) of the Company Disclosure Letter. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining agreement or other labor union Contract, no collective bargaining agreement is being negotiated by the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries has any duty to bargain with any labor organization. There is no pending demand for recognition or any other request or demand from a labor organization for representative status with respect to any Person employed by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has knowledge of any activities or proceedings of any labor union or to organize their respective employees. There is no labor dispute, strike or work stoppage against the Company or any of its Subsidiaries pending or, to the knowledge of the Company, threatened which may interfere with the respective business activities of the Company or any of its Subsidiaries. Neither the Company, any Subsidiary of the Company, nor to the knowledge of the Company any of their respective representatives or employees, has committed any unfair labor practice in connection with the operation of the Business, and there is no charge or complaint against the Company by the National Labor Relations Board or any comparable Governmental Entity pending or to the knowledge of the Company, threatened.
(h) Neither To the execution or delivery of this Agreement nor the consummation knowledge of the transactions contemplated by this Agreement Company, no employee of the Company or any termination of its Subsidiaries is in violation of any term of any employment agreement, non-competition agreement, or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company because of the nature of the Business or to the use of trade secrets or proprietary information of others. Except as set forth on Schedule 2.13(h) of the Company Disclosure Letter, no employee of the Company or any of its Subsidiaries has given notice to the Company or such Subsidiary or is under a notice of dismissal, nor does the Company or such Subsidiary otherwise have knowledge, that any such employee intends to terminate his or her employment with the Company or such Subsidiary. The employment of the employees of the Company or any of its Subsidiaries is “at will” and neither the Company nor any of its Subsidiaries has any obligation to provide any particular form or period of notice prior to terminating the employment of any of their respective employees, except as set forth on Schedule 2.13(h) of the Company Disclosure Letter. As of the date hereof, neither the Company nor any of its Subsidiaries has (i) entered into any Contract that obligates or purports to obligate Acquirer to make an offer of employment to any present or service former employee or consultant of the Company or such Subsidiary and/or (ii) promised or otherwise provided any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, assurances (whether contingent or otherwise), ) to any present or former employee or consultant of the Company or such Subsidiary of any terms or conditions of employment with Acquirer following the Closing Date.
(i) result Schedule 2.13(i) of the Company Disclosure Letter sets forth a true, correct and complete list of the names, positions and rates of compensation of all officers, directors, and employees of the Company, showing each such person’s name, position, annual base salary, target bonus and target commissions, status as exempt/non-exempt, for the current fiscal year and the most recently completed fiscal year.
(j) The Company has made available to Buyer a true, correct and complete list of all of its current consultants, advisory board members and independent contractors and for each the initial date of the engagement and whether the engagement has been terminated by written notice by either party or for any such consultant, advisory board member or independent contractor to which the Company may have Liability with respect thereto.
(k) The Company has made available to Buyer’s counsel true, correct and complete copies of each of the following: all forms of offer letters; all forms of employment agreements and severance agreements; all forms of services agreements and agreements with current and former consultants and/or advisory board members; all forms of confidentiality, non-competition or inventions agreements between current and former employees/consultants and the Company (and a true, correct and complete list of employees, consultants and/or others not subject thereto); the most current management organization chart(s); all agreements and/or insurance binders, which insurance binders shall provide a complete and correct summary of the underlying insurance policies, providing for the indemnification of any officers or directors of the Company and a summary of Liability for termination payments to current and former directors, officers and employees of the Company.
(l) The Company has delivered or made available to Buyer true and complete copies of all election statements under Section 83(b) of the Code that are in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, the Company’s possession with respect to any current unvested securities or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made other property issued by the Company or any ERISA Affiliate to any Personof their respective employees, non-employee directors, consultants and other service providers.
Appears in 1 contract
Samples: Merger Agreement (ShoreTel Inc)
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a3.17(a) sets forth a list of all Employee Benefit Plans adopted, maintained, sponsored in whole or in part or contributed to by the Company Disclosure Letter lists, Acquired Companies or with respect to which the Company and Acquired Companies have any trade obligation or business liability contingent or otherwise (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangements, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”).
(b) The With respect to each Company Plan, the Company has made available delivered to Acquirer’s Parent or its counsel a true, correct and complete copy of: (i) each writing constituting a part of each any written Company Plan and all amendments thereto, and all trusts (or other funding arrangement), and written summaries of the material terms of all unwritten Company Employee Plans Plans; (ii) the most recent Annual Report (Form 5500 Series or otherwise in a form in accordance with applicable Law) including all applicable schedules, if any, for each Company Plan that is subject to such reporting requirements; (iii) the current summary plan description and related any material modifications thereto, if any; (iv) if such Company Plan is intended to be qualified under Section 401(a) of the Code, the most recent determination letter (or if applicable, advisory or opinion letter) from the IRS, if any, and any pending applications for a determination or opinion letter filed by an Acquired Company; (v) copies of non-discrimination testing data and results for the two most recently completed plan documents. The Company does not sponsor years; and (vi) copies of any voluntary correction filings during the Lookback Period with the IRS or maintain the U.S. Department of Labor or any self-funded Company Employee Plan, including, without limitation, written description of the correction of any plan to which a stop-loss policy appliesmaterial failure created for the Company’s internal books and records.
(c) None of the In all material respects, each Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law and the Company has complied with the requirements of COBRA. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered established and maintained in accordance with its terms and in compliance with the requirements prescribed by any and all statutesapplicable Laws, rules and regulations (including ERISA and the Code. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Plan that would reasonably be expected to result in any material liability. There are no current actions, suits or claims pending, or, to the Company’s Knowledge, threatened in writing (other than routine claims for benefits) against any Company Plan or against the assets of any Company Plan. There are no Legal Proceedings pending or, to the Company’s Knowledge, threatened in writing by any Governmental Entity with respect to any Company Plan. The Acquired Companies have timely made all contributions and other payments required by and due under the terms of each Company Plan.
(d) There is no Contract or plan to which the Acquired Companies are bound to provide a gross-up or otherwise reimburse any employee for excise taxes paid pursuant to Section 4999 of the Code. The execution and delivery of this Agreement, the consummation of the Transactions and the Closing, either alone or in conjunction with any other event, will not (i) result in any payment (whether in cash, property or the vesting of property) of compensation or benefits becoming due to any current or former employee, consultant, independent contractors or other individual service provider of the Acquired Companies under a Company Plan, (ii) result in any acceleration of the time of payment or vesting of any benefits or increase the amount of compensation or benefits due to, or result in the forgiveness of indebtedness of any current or former employee, consultant, independent contractors or other individual service provider of any Acquired Company under any Company Plan, or (iii) trigger an obligation to fund obligations under, or prevent the modification or termination of, any Company Plan.
(e) Each Company Plan that constitutes a “nonqualified deferred compensation plan” subject to Section 409A of the Code has been written, executed and operated in material compliance with Section 409A of the Code and the regulations thereunder.
(f) Each Company Plan that is intended to be qualified under Section 401(a) of the Code has received a currently effective favorable determination letter, or is entitled to rely on an advisory letter or opinion letter, as applicable, from the IRS that such plan is qualified under Section 401(a) of the Code and exempt from federal income tax under Section 501(a) of the Code, and, to the Company’s Knowledge, nothing has occurred that would reasonably be expected to result in the loss of such qualified status of any such Company Plan.
(g) No Acquired Company nor any entity with which any Acquired Company was, at the relevant time, considered a single employer under Sections 414(b), and (c) or (m) of the Company and each Code (an “ERISA Affiliate Affiliate”) has performed all obligations required to be performed by it undersponsored, is not in default under or in violation of, and has no knowledge of any default or violation by any other party contributed to, or had within the past six years any of the Company Employee Plans. No Company Employee Plan obligations or incurred any liability under any employee benefit plan that is covered by, and neither the Company nor ERISA Affiliate has incurred or expects subject to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer Code (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (“defined benefit plan” within the meaning of Section 3(23(35) of ERISA), or to a “multiemployer plan” within the meaning of Section 3(37) which is subject to Part 3 of Subtitle B of Title I of ERISA. No Company Plan is a multiple employer plan (meaning a plan sponsored by more than one employer within the meaning of ERISA Sections 4063 or 4064 or Code Section 413(c)) or a multiple employer welfare arrangement as defined in ERISA Section 3(40). No Acquired Company nor any ERISA Affiliate has incurred, and there are no circumstances under which any Acquired Company or ERISA Affiliate could reasonably incur, any liability under Title IV of or ERISA or Section 412 of the Code.
(eh) Neither Schedule 3.17(h) contains a true, complete and correct list of the employees employed by each of the Acquired Companies, as of October 16, 2021, including their respective titles, position held, principal place of employment, current annualized salaries or hourly wage rate, as applicable, including each employee’s treatment by such Acquired Company as either exempt or non-exempt from the overtime requirements of the Fair Labor Standards Act, the date and amount of each such employee’s most recent salary increase, the date of hire, the accrued paid time off for non-exempt employees, active or inactive status (including type of leave status, and expected return date, if known), visa status, incentive and bonus arrangements to which any Acquired Company is a party, any severance or termination payment (in cash or otherwise) to which any employee could be entitled under existing Contracts, and actual overtime payments per month during the preceding 12-month period for non-exempt employees. No less than 10 Business Days prior to the Closing Date, the Company nor ERISA Affiliate is shall update the information provided in Schedule 3.17(h) and deliver such update to Parent. To the Company’s Knowledge, no employee of any of any Acquired Company intends to resign, retire or discontinue such Person’s relationship with the applicable Acquired Company as a party to, or has made any contribution to result of the Transactions or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of within one year after the CodeClosing Date.
(f) No Company Employee Plan is sponsored, maintained or contributed to under the law or applicable custom or rule of the any jurisdiction outside of the United States.
(gi) The Company is Acquired Companies: (i) are, and during the Lookback Period have been, in material compliance in all material respects with all currently applicable Legal Requirements Laws, and with applicable Governmental Order, in each case, respecting employmentthe employment of labor, including all such Laws relating to discrimination or harassment in employment, ; terms and conditions of employment, worker classification (including the proper classification ; termination of workers as independent contractors employment; wages; overtime classification; hours; meal and consultants), wages, hours and rest breaks; employee leave requirements; child labor; occupational safety and health health; plant closings; employee whistle-blowing; immigration and employment eligibility verification; employee privacy; background checks and other consumer reports regarding employees and applicants; employment practices, including the Immigration Reform ; affirmative action and Control Act, other employment-related obligations on federal contractors and is not engaged in any unfair labor practice. The Company is not liable for any arrears subcontractors; classification of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Company has paid in full to all employees, consultants and independent contractors contractors; labor relations; collective bargaining; unemployment insurance; the collection and consultants all wagespayment of withholding and/or social security taxes and any similar tax; and workers’ compensation (collectively, salaries, commissions, bonuses, benefits “Employment Matters”); and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable (ii) have no material liability for any payment to any trust or other fund governed by or to maintained by or on behalf of any Governmental Entity, Entity with respect to unemployment compensation benefits, social security or other benefits or obligations for employees any employee (other than routine payments to be made in the normal course of business and consistently consistent with past practice).
(hj) Neither During the execution or delivery of this Agreement nor Lookback Period, no Acquired Company has effectuated: (i) a “plant closing” (as defined in the consummation of the transactions contemplated by this Agreement or WARN Act) affecting any termination site of employment or service one or more facilities or operating units within any site of employment or facility of any Acquired Company; or (ii) a “mass layoff” (as defined in the WARN Act) affecting any site of employment or facility of any Acquired Company; and no Acquired Company has been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any similar state or local Law. Except as set forth in Schedule 3.17(j), no employee of any Acquired Company has suffered an “employment loss” (as defined in the WARN Act) within the preceding 90 days.
(k) There are no, and during the Lookback Period there have been no, Legal Proceedings against or relating to any Acquired Company pending or, to the Company’s Knowledge, threatened relating to any Company Plan (other than routine claims for benefits), collective bargaining Contract, or any other event in connection therewith Employment Matters.
(l) No Acquired Company is a party to any Contract or subsequent thereto willsubcontract with the United States government or any department or agency thereof that, individually or together in the aggregate, triggers any obligations under Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, or the Vietnam Era Veterans’ Readjustment Assistance Act, and no customers are using the products or services of any Acquired Company to perform services or provide goods for the United States government or any department or agency thereof, or have included any reference to federal contracting, subcontracting or supplying, or otherwise referenced Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, or the Vietnam Era Veterans’ Readjustment Assistance Act, in any agreement with any Acquired Company.
(m) The Acquired Companies have investigated all sexual harassment allegations made by or about any employee or independent contractor of any Acquired Company during the occurrence Lookback Period and of some other event, (whether contingent which the Company has Knowledge. No Acquired Company reasonably expects any material liabilities or otherwise)Losses with respect to any such allegations. During the Lookback Period, (i) result in to the Company’s Knowledge, no allegations of sexual harassment have been made against any material payment employee of any Acquired Company who is (A) an executive officer or benefit (including severanceB) at the level of senior vice president or above, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultant, and (ii) materially increase the amount no Acquired Company has entered into any settlement Contracts related to allegations of sexual harassment or value misconduct by any employee or independent contractor of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any PersonAcquired Company.
Appears in 1 contract
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a2.17(a) sets forth a list of all Employee Benefit Plans adopted, maintained, sponsored in whole or in part or contributed to by the Company Disclosure Letter lists, Acquired Companies or with respect to which the Company and Acquired Companies could have any trade obligation or business liability contingent or otherwise (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangements, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”).
(b) The With respect to each Company Plan, as applicable, the Company has made available to Acquirer’s the Buyer or its counsel a true, correct and complete copy of: (i) the written Company Plan document and all amendments thereto, and all trusts (or other funding arrangement) or service agreements relating to the administration and recordkeeping of each such written Company Plans, and written summaries of the material terms of all unwritten Company Employee Plans Plans; (ii) the most recent Annual Report (Form 5500 Series) including all applicable schedules, if any, for each Company Plan that is subject to such reporting requirements; (iii) the current summary plan description and related any material modifications thereto or any written summary provided to participants with respect to any Company Plan for which no summary plan documents. The description exists; (iv) if such Company does not sponsor Plan is intended to be qualified under Section 401(a) of the Code, the most recent determination letter (or maintain if applicable, advisory or opinion letter) from the IRS, if any, and any selfpending applications for a determination letter; (v) copies of non-funded Company Employee Plan, including, without limitation, discrimination testing results for the two most recently completed plan years; and (vi) copies of any plan to which a stop-loss policy appliesvoluntary correction filings within the past three years with the IRS or the U.S. Department of Labor.
(c) None of the Each Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985Plan has been established and maintained in material compliance with its terms and all applicable Laws, as amended (“COBRA”) or similar state law including ERISA and the Company has complied with the requirements of COBRACode. There has been no No “prohibited transaction,” (within the meaning of Section 406 of ERISA and Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA and regulatory guidance thereunder) ERISA, has occurred with respect to any Company Employee Plan that would reasonably be expected to result in any material liability. There are no current actions, suits or claims pending, or, to the Company’s Knowledge, threatened in writing (other than routine claims for benefits) against any Company Plan or against the assets of any Company Plan. There are no Legal Proceedings pending or, to the Company’s Knowledge, threatened in writing by any Governmental Entity with respect to any Company Plan. The Acquired Companies have timely made or otherwise provided for all contributions and other payments required by and due under the terms of each Company Plan.
(d) Except as set forth on Schedule 2.17(d), no payment or benefit that will or may be made by the Acquired Companies with respect to any “disqualified individual” (as defined in Code Section 280G and the regulations thereunder) will be characterized as a parachute payment within the meaning of Code Section 280G(b)(2). There is no Contract or Company Plan under which the Acquired Companies are bound to provide a gross-up or otherwise reimburse any employee for excise taxes paid pursuant to Section 4999 of the Code. Except as set forth on Schedule 2.17(d), the execution and delivery of this Agreement, the consummation of the Transactions and the Closing, either alone or in conjunction with any other event, will not (i) result in any payment (whether in cash or property) of compensation or benefits becoming due to any current or former employee, consultant, independent contractors or other individual service provider of the Acquired Companies under a Company Plan, (ii) result in any acceleration of the time of payment or vesting of any benefits or increase the amount of compensation or benefits due to, or result in the forgiveness of indebtedness of any current or former employee, consultant, independent contractors or other individual service provider of any Acquired Company under any Company Plan, or (iii) trigger an obligation to fund obligations under, or prevent the modification or termination of, any Company Plan.
(e) Each Company Employee Plan that is intended to be “qualified” under Section 401(a) of the Code and is to Company’s Knowledge so qualified and has been administered in accordance with its terms and in compliance with received the requirements prescribed by any and all statutesmost recently available a favorable determination letter, rules and regulations (including ERISA or is entitled to rely on an advisory letter or opinion letter, as applicable, from the IRS that the form of such plan is qualified under Section 401(a) of the Code and the trust thereunder is exempt from federal income tax under Section 501(a) of the Code, and, to the Company’s Knowledge, nothing has occurred that would reasonably be expected to adversely affect the qualified status of any such Company Plan.
(f) No Acquired Company nor any entity with which any Acquired Company was, at the relevant time, considered a single employer under Sections 414(b), and (c) or (m) of the Company and each Code (an “ERISA Affiliate Affiliate”) has performed all obligations required to be performed by it undersponsored, is not in default under or in violation of, and has no knowledge of any default or violation by any other party contributed to, or had any obligations or incurred any liability under any “employee benefit plan” (as defined in Section 3(3) of the Company Employee Plans. No Company Employee Plan ERISA) that is covered by, and neither the Company nor ERISA Affiliate has incurred or expects subject to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer Code (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (“defined benefit plan” within the meaning of Section 3(23(35) of ERISA), or, except as set forth in Schedule 2.17(f), a “multiemployer plan” within the meaning of Section 3(37) which is subject to Part 3 of Subtitle B of Title I of ERISA. No Company Plan is a multiple employer plan (meaning a plan sponsored by more than one employer within the meaning of ERISA Sections 4063 or 4064 or Code Section 413(c)) or a multiple employer welfare arrangement as defined in ERISA Section 3(40). No Acquired Company nor any ERISA Affiliate has incurred, and there are no circumstances under which any Acquired Company or ERISA Affiliate could reasonably incur, any liability under Title IV of or ERISA or Section 412 of the Code.
(eg) Neither Schedule 2.17(g) contains a true, complete and correct list of the employees employed by each of the Acquired Companies, as of October 31, 2021, including their respective job titles, principal place of employment (city, state), compensation (including current annualized salaries or hourly wage rate and 2020 incentive compensation, as applicable), each employee’s designation as either exempt or non-exempt from the overtime requirements of the Fair Labor Standards Act, the date of hire, active or inactive status (including type of leave status, and expected return date, if known), and visa status. To the Company’s Knowledge, no employee of any of any Acquired Company nor ERISA Affiliate is intends to resign, retire or discontinue such Person’s relationship with the applicable Acquired Company as a party to, or has made any contribution to result of the Transactions or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of within one year after the CodeClosing Date.
(f) No Company Employee Plan is sponsored, maintained or contributed to under the law or applicable custom or rule of the any jurisdiction outside of the United States.
(gh) The Company is Acquired Companies: (i) are and during the past three years have been in material compliance in all material respects with all currently applicable Legal Requirements Laws, and with any Governmental Order, respecting employmentthe employment of labor, including all Contracts and all such Laws relating to discrimination or harassment in employment, ; terms and conditions of employment, worker classification (including the proper classification ; termination of workers as independent contractors employment; wages; overtime classification; hours; meal and consultants), wages, hours and rest breaks; employee leave requirements; child labor; occupational safety and health health; plant closings; employee whistle-blowing; immigration and employment eligibility verification; employee privacy; defamation; background checks and other consumer reports regarding employees and applicants; employment practices; negligent hiring or retention; affirmative action and other employment-related obligations on federal contractors and subcontractors; classification of employees, including consultants and independent contractors; labor relations; collective bargaining; unemployment insurance; the Immigration Reform collection and Control Actpayment of withholding and/or social security taxes and any similar tax; employee benefits; and workers’ compensation (collectively, “Employment Matters”); (ii) to the Company’s Knowledge, have withheld and is not engaged in reported all amounts required by any unfair labor practice. The Company is not liable for any arrears of Law or Contract to be withheld and reported with respect to wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Company has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits salaries and other compensation due payments to or on behalf of such employeesany employee; and (iii) to the Company’s Knowledge, independent contractors and consultants. The Company is not liable have no liability for any payment to any trust or other fund governed by or to maintained by or on behalf of any Governmental Entity, Entity with respect to unemployment compensation benefits, social security or other benefits or obligations for employees any employee (other than routine payments to be made in the normal course of business and consistently consistent with past practice).
(hi) Neither Except as set forth on Schedule 2.17(i), during the execution or delivery of this Agreement nor past three years, no Acquired Company has effectuated: (i) a “plant closing” (as defined in the consummation of the transactions contemplated by this Agreement or WARN Act) affecting any termination site of employment or service one or more facilities or operating units within any site of employment or facility of any Acquired Company; or (ii) a “mass layoff” (as defined in the WARN Act) affecting any site of employment or facility of any Acquired Company; and no Acquired Company has been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any similar state or local Law.
(j) Except as set forth in Schedule 2.17(j), there are no, and in the past three years there have been no, Legal Proceedings against or relating to any Acquired Company pending or, to the Company’s Knowledge, threatened relating to any Company Plan, collective bargaining Contract, or any other event in connection therewith Employment Matters.
(k) No Acquired Company is a party to any Contract or subsequent thereto willsubcontract with the United States government or any department or agency thereof that, individually or together in the aggregate, triggers any obligations under Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, or the Vietnam Era Veterans’ Readjustment Assistance Act, and to the Company’s Knowledge, no customers are using the products or services of any Acquired Company to perform services or provide goods for the United States government or any department or agency thereof, or have included any reference to federal contracting, subcontracting or supplying, or otherwise referenced Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, or the Vietnam Era Veterans’ Readjustment Assistance Act, in any agreement with any Acquired Company.
(l) Except as set forth in Schedule 2.17(l), in the occurrence of some other event, (whether contingent or otherwise)past three years, (i) result in to the Company’s Knowledge, no allegations of sexual harassment have been made against any material payment employee of any Acquired Company who is (A) an executive officer or benefit (including severanceB) at the level of vice president or above, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultant, and (ii) materially increase the amount no Acquired Company has entered into any settlement Contracts related to allegations of sexual harassment or value misconduct by any employee or independent contractor of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any PersonAcquired Company.
Appears in 1 contract
Samples: Stock Purchase Agreement (CURO Group Holdings Corp.)
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a2.13(a) of the Company Disclosure Letter lists, with respect to the Company Company, any Subsidiary and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “"ERISA Affiliate”AFFILIATE") within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all “"employee benefit plans” " within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), (ii) each loan to an employeeemployee in excess of $10,000, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangementsarrangements that apply to senior management and that do not generally apply to all employees, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company or any Subsidiary of greater than $10,000 remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company or any Subsidiary (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”"COMPANY EMPLOYEE PLANS", and each a "COMPANY EMPLOYEE PLAN").
(b) The Company has made available to Acquirer’s counsel Acquiror a true, correct and complete copy of each of the Company Employee Plans and related plan documents (including trust documents, insurance policies or Contracts, employee booklets, summary plan descriptions and other authorizing documents, and any material employee communications relating thereto) and has, with respect to each Company Employee Plan which is subject to ERISA reporting requirements, made available to Acquiror true, correct and complete copies of the Form 5500 reports filed for the last three plan years. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code, including all amendments to the Code effected by the Tax Reform Act of 1986 and subsequent legislation, or has applied (or has time remaining in which to apply) to the Internal Revenue Service for such a determination letter prior to the expiration of the requisite period under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination or has been established under a standardized prototype plan for which an Internal Revenue Service opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer. The Company does has also provided or made available to Acquiror, its counsel or its advisors a true, correct and complete copy of the most recent Internal Revenue Service determination or opinion letter issued with respect to each such Company Employee Plan, and nothing has occurred since the issuance of each such letter which would reasonably be expected to cause the loss of the Tax-qualified status of any Company Employee Plan subject to Section 401(a) of the Code. The Company has also made available to Acquiror all registration statements and prospectuses prepared in connection with each Company Employee Plan. All individuals who, pursuant to the terms of any Company Employee Plan, are entitled to participate in any Company Employee Plan, are currently participating in such Company Employee Plan or have been offered an opportunity to do so and as to participation in medical, dental and vision care benefits, have declined in writing. No employee of the Company or any Subsidiary and no person subject to any health plan of the Company or any Subsidiary has made medical claims through any such health plan during the 12 months preceding the date hereof for more than $25,000 in the aggregate for which the Company or such Subsidiary is responsible. For the purposes of the forgoing sentence, any exception to such representation and warranty set forth in the Disclosure Letter shall be stated generally and shall not sponsor identify any employee of the Company or maintain such Subsidiary or person subject to any health plan of the Company or such Subsidiary who has made medical claims. Neither the Company nor any Subsidiary sponsors or maintains any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy appliesemployee benefit plan.
(c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“"COBRA”) "), or similar state law and the Company has complied with the requirements of COBRAlaw. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with With respect to any Company Employee Plan, (i) there have been no "prohibited transactions" as described in Section 406(a)(1)(E) of ERISA, Section 406(b) of ERISA, Section 4975(c)(1)(E) of the Code or Section 4975(c)(1)(F) of the Code and regulatory guidance thereunder that are not exempt by reason of Section 408 of ERISA and Section 4975(d) of the Code and regulatory guidance thereunder ("FIDUCIARY TRANSACTIONS") and not described in (ii), and (ii) there have been (A) no prohibited transactions described in Section 406(a)(1)(A)-(D) of ERISA and Section 4975(c)(1)(A)-(D) of the Code and regulatory guidance thereunder, and (B) no Fiduciary Transactions involving only fiduciaries or disqualified persons who are unrelated to the Company that could, in the aggregate, result in material liability to the Company or any Subsidiary. Each Company Employee Plan has been administered in accordance with its material terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company Company, each Subsidiary and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in any material respect in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. Neither the Company nor any Subsidiary or ERISA Affiliate is subject to any liability or penalty under Sections 4976 through 4980 of the Code or Title I of ERISA with respect to any of the Company Employee Plans. All contributions required to be made by the Company, any Subsidiary or any ERISA Affiliate to any Company Employee Plan have been made on or before their due dates and a reasonable amount has been accrued for contributions to each Company Employee Plan for the current plan years (and no further contributions will be due or will have accrued thereunder as of the Closing Date, other than contributions accrued in the ordinary course of business, consistent with past practice, after the Company Balance Sheet Date as a result of the operations of Company and its Subsidiaries after the Company Balance Sheet Date). In addition, with respect to each Company Employee Plan intended to include a Code Section 401(k) arrangement, the Company, its Subsidiaries and ERISA Affiliates have at all times made timely deposits of employee salary reduction contributions and participant loan repayments, as determined pursuant to regulations issued by the United States Department of Labor. No Company Employee Plan is covered by, and neither the Company nor any Subsidiary or ERISA Affiliate has incurred or expects to incur any Liability liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability liability to Acquirer Acquiror, the Surviving Corporation and/or any Subsidiary (other than ordinary administrative expenses typically incurred in a termination event). With respect to each Company Employee Plan subject to ERISA as either an employee pension benefit plan within the meaning of Section 3(2) of ERISA or an employee welfare benefit plan within the meaning of Section 3(1) of ERISA, the Company has prepared in good faith and timely filed all requisite governmental reports (which were true, correct and complete as of the date filed), including any required audit reports, and has properly and timely filed and distributed or posted all notices and reports to employees required to be filed, distributed or posted with respect to each such Company Employee Plan. No suit, administrative proceeding, action, action or other litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) With respect to each Company Employee Plan, each of the Company and each United States Subsidiary has complied with (i) the applicable health care continuation and notice provisions of COBRA and the regulations (including proposed regulations) thereunder, (ii) the applicable requirements of the Family Medical and Leave Act of 1993 and the regulations (including proposed regulations) thereunder, (iii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations (including proposed regulations) thereunder, (iv) the applicable requirements of the Americans with Disabilities Act of 1990, as amended and the regulations (including proposed regulations) thereunder, (v) the Age Discrimination in Employment Act of 1967, as amended, and (vi) the applicable requirements of the Women's Health and Cancer Rights Act of 1998 and the regulations (including proposed regulations) thereunder.
(e) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company, any Subsidiary or other ERISA Affiliate relating to, or change in participation or coverage under, any Company Employee Plan which would materially increase the expense of maintaining such Company Employee Plan above the level of expense incurred with respect to such Company Employee Plan for the most recent fiscal year included in the Financial Statements. No Company Employee Plan will be subject to any surrender fees or service fees upon termination other than the normal and reasonable administrative fees associated with the termination of benefit plans.
(f) Neither the Company nor any Subsidiary or current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(eg) Neither the Company nor any Subsidiary or ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “"multiemployer plan” " as such term is defined in Section 3(37) of ERISA or any “"multiple employer plan” " as such term is defined in Section 413(c) of the Code.
(fh) No Company Employee Plan is sponsored, Each compensation and benefit plan maintained or contributed to by the Company or any Subsidiary under the law or applicable custom or rule of the any relevant jurisdiction outside of the United States.
States (geach such plan, a "FOREIGN PLAN") The is listed in Schedule 2.13(h) of the Company Disclosure Letter. As regards each Foreign Plan, (i) such Foreign Plan is in material compliance with the provisions of the Legal Requirements of each jurisdiction in which such Foreign Plan is maintained, to the extent those Legal Requirements are applicable to such Foreign Plan, (ii) all contributions to, and material payments from, such Foreign Plan which may have been required to be made in accordance with the terms of such Foreign Plan, and, when applicable, the Legal Requirements of the jurisdiction in which such Foreign Plan is maintained, have been timely made or shall be made by the Closing Date, and all such contributions to such Foreign Plan, and all payments under such Foreign Plan, for any period ending before the Closing Date that are not yet, but will be, required to be made, are reflected as an accrued liability on the Company Balance Sheet, (iii) the Company, each Subsidiary, and each ERISA Affiliate has materially complied with all applicable reporting and notice requirements, and such Foreign Plan has obtained from the Governmental Entity having jurisdiction with respect to such Foreign Plan any required determinations, if any, that such Foreign Plan is in compliance with the Legal Requirements of the relevant jurisdiction if such determinations are required in order to give effect to such Foreign Plan, (iv) such Foreign Plan has been administered in all material respects at all times in accordance with all currently its terms and applicable Legal Requirements respecting employmentRequirements, discrimination in employment(v) to the knowledge of the Company, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Actthere are no pending investigations by any governmental body involving such Foreign Plan, and is not engaged in any unfair labor practice. The Company is not liable no pending claims (except for any arrears of wages, compensation, Taxes, penalties or other sums claims for failure to comply with any of the foregoing. The Company has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made payable in the normal course operation of business and consistently with past practicesuch Foreign Plan).
, suits or proceedings against such Foreign Plan or asserting any rights or claims to benefits under such Foreign Plan, (hvi) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will not by itself create or otherwise result in any liability with respect to such Foreign Plan, and (vii) except as required by applicable Legal Requirements, no condition exists that would prevent the Company or any of its Subsidiaries from terminating or amending any Foreign Plan at any time for any reason in accordance with the terms of each such Foreign Plan without the payment of any fees, costs or expenses (other than the payment of benefits accrued through the date of termination and any normal and reasonable expenses typically incurred in a termination event). The benefits available under all Foreign Plans in the aggregate do not provide materially greater benefits to employees of the Company or any Subsidiary participating in such plans than the benefits available under the Company Employee Plans for employees of the Company or any Subsidiary in the United States. No Foreign Plan has unfunded liabilities that will not be offset by insurance or that are not fully accrued on the financial statements of the Company in accordance with GAAP.
(i) Schedule 2.13(i) of the Company Disclosure Letter lists as of the Agreement Date each employee of the Company or any Subsidiary who is not fully available to perform work because of disability or other leave and also lists, with respect to each such employee, the basis of such disability or leave and the anticipated date of return to full service.
(j) None of the execution and delivery of this Agreement, the consummation of the Merger or any other transaction contemplated hereby or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultantPerson, (ii) materially increase the amount or value of otherwise enhance any benefit or compensation benefits otherwise payable by the Company or required to be provided to any current or former employee, director, independent contractor or consultantSubsidiary, (iii) result in the acceleration of the time of payment, payment or vesting or funding of any such benefit or compensationbenefits, (ivexcept as required under Section 411(d)(3) increase of the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person.Code,
Appears in 1 contract
Samples: Merger Agreement (Amdocs LTD)
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(aSection 2.12(a) of the Company Disclosure Letter listsSchedule lists every pension, with respect to the Company and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b)retirement, (c)profit-sharing, (m) or (o) of the Codedeferred compensation, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock option, employee stock purchaseownership, phantom stockseverance pay, stock appreciation rightvacation, supplemental retirement, severance, sabbatical, bonus or other incentive plan; any medical, dentalvision, vision caredental or other health plan; any life insurance plan or any other employee benefit plan or fringe benefit plan; any payroll practice, disabilityother written or unwritten employee program, employee relocationarrangement, cafeteria benefit agreement or understanding; commitments or methods of contribution or compensation (Section 125 of the Codewhether arrived at through collective bargaining or otherwise), dependent care (Section 129 of the Code), life insurance whether formal or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangementsinformal, and (vi) all employment whether funded or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”).
(b) The Company has made available to Acquirer’s counsel a true, correct and complete copy of each of the Company Employee Plans and related plan documents. The Company does not sponsor or maintain any self-funded Company Employee Plan, unfunded; including, without limitation, any “employee benefit plan,” as that term is defined in Section 3(3) of ERISA; and including plans otherwise exempt from ERISA under Section 4(b)(4) thereof because they are maintained outside of the United States primarily for the benefit of persons substantially all of whom are nonresident aliens; that is currently maintained, sponsored in whole or in part, or contributed to by or was adopted during the past six years by the Company or any ERISA Affiliate of the Company or under (or in connection with) which the Company or an ERISA Affiliate of the Company has any contingent or noncontingent liability of any kind, whether or not probable of assertion (collectively, the “Benefit Plans”). Any of the Benefit Plans that is an “employee pension benefit plan” as that term is defined in Section 3(1) of ERISA, is referred to herein as an “ERISA Plan.” No Benefit Plan is or has been a multiemployer plan within the meaning of Section 3(37) of ERISA.
(b) Section 2.12(b) of the Company Disclosure Schedule lists, with respect to which all Benefit Plans listed in Section 2.12(a) of the Company Disclosure Schedule: (a) all trust agreements or other funding arrangements, including insurance contracts, all annuity contracts, actuarial statements or valuations, fidelity bonds, fiduciary liability policies, investment manager or advisory contracts, and all amendments (if any) thereto; (b) where applicable, with respect to any such plans or plan amendments, the most recent determination letters issued by the IRS; and (c) the most recent summary plan descriptions, any material modifications thereto, and all material employee communications with respect to such Benefit Plans. Contemporaneous with the delivery of the Company Disclosure Schedule, the Company has delivered a stop-loss policy appliestrue and complete copy of each such Benefit Plan, agreement, most recent IRS letter or ruling, opinion, return, financial statement and summary plan description described in Section 2.12(a) or Section 2.12(b) hereof, certified as such by the chief financial officer of the Company, together with the annual report (Form 5500 Series) for the two most recent plan years for any Benefit Plan subject to such reporting requirements.
(c) None All the Benefit Plans and any related trusts subject to ERISA comply in all material respects with and have been administered in substantial compliance with the provisions of ERISA, all applicable provisions of the Company Employee Plans promises Code, and all applicable federal or provides retiree medical or state Laws and all other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985applicable Laws, as amended (“COBRA”) or similar state law rules and regulations, and the Company has complied not received any notice from any governmental agency or instrumentality questioning or challenging such compliance. Any noncompliance or failure properly to maintain, operate or administer a Benefit Plan or related trust has not rendered nor will render (i) such Benefit Plan or related trust of the Company subject to or liable for any material taxes, penalties or Liabilities to any Person; (ii) such Benefit Plan subject to disqualification; or (iii) the related trust subject to loss of tax-exempt status.
(d) Neither the Company, nor, to the best knowledge and belief of the Company, any administrator or fiduciary of any such Benefit Plan (or agent or delegate of any of the foregoing) has engaged in any transaction or acted or failed to act in any manner that could subject the Company to any direct or indirect liability (by indemnity or otherwise) for a breach of any fiduciary, co-fiduciary or other duty under ERISA. Except as set forth in Section 2.12(d) of the Company Disclosure Schedule, no material oral or written representation or communication with respect to any aspect of the Benefit Plans has been or will be made to employees of the Company prior to the Closing Date that is not in accordance with the requirements written or otherwise preexisting terms and provisions of COBRAsuch Benefit Plans in effect immediately prior to the Closing Date, except for any amendments or terminations required by the terms of this Agreement or by applicable Law. There has are no claims or disputes under the terms of, or in connection with, the Benefit Plans (other than routine claims for benefits).
(e) All annual reports or returns, audited or unaudited financial statements, actuarial valuations, summary annual reports and summary plan descriptions issued with respect to the Benefit Plans are correct and accurate in all material respects as of the dates thereof; and there have been no amendments filed to any of such reports, returns, statements, valuations or descriptions or required to make the information therein true and accurate. All annual reports (Form 5500 series) required to be filed with respect to any Benefit Plan have been or will be timely filed.
(f) No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder4975(c) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No Company Employee Plan is covered by, and neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code) involving any Benefit Plan has occurred. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge None of the Company, assets of any ERISA Plan is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan an “employer security” (within the meaning of Section 3(2407(d)(1) of ERISA) which or “employer real property” (within the meaning of Section 407(d)(2) of ERISA).
(g) Each Benefit Plan that is or has been an “employee pension benefit plan” as defined in Section 3(2) of ERISA is a defined contribution plan qualified under Section 401(a) of the Code and its related trust is exempt from tax under Section 501(a) of the Code (a “Qualified Plan”) and no circumstances exist that could reasonably be expected to result in disqualification of any Qualified Plan or loss of tax-exempt status for its related trust. No Qualified Plan (nor any predecessor to a Qualified Plan) has ever been subject to Part 3 the provisions of Subtitle B of Title I of ERISA, Title IV of ERISA or to the minimum funding standards of Section 412 of the Code.
(eh) The Company has no current or future liability with respect to any events or matters occurring, arising or accruing on or prior to such date under any Benefit Plan that is not reflected in the Company Financials.
(i) The Company does not maintain any Benefit Plan providing deferred or stock based compensation that is not reflected in the Company Financials.
(j) Neither the Company nor any ERISA Affiliate is of the Company has maintained, and neither now maintains, a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” Benefit Plan providing welfare benefits (as such term is defined in ERISA Section 3(373(1)) to employees after retirement or other separation of service except to the extent required under Part 6 of Title I of ERISA or any “multiple employer plan” and Code Section 4980B.
(k) Except as such term is defined set forth in Section 413(c2.12(k) of the Code.
(f) No Company Employee Plan is sponsoredDisclosure Schedule, maintained or contributed to under the law or applicable custom or rule of the any jurisdiction outside of the United States.
(g) The Company is in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice. The Company is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Company has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice).
(h) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (whether contingent or otherwise), will not (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to entitle any current or former employee (or any spouse, dependent or other family member of such employee) of the Company to severance pay, directorunemployment compensation or any payment contingent upon a change in control or ownership of the Company or (ii) accelerate the time of payment or vesting, independent contractor or consultantincrease the amount, of any compensation due to any such employee or former employee (or any spouse, dependent or other family member of such employee).
(l) Section 2.12(l) of the Company Disclosure Schedule sets forth a complete list of all agreements, Contracts or commitments of the Company (description to include title of agreement or indicate if letter agreement, together with employee’s name and date of agreement) in favor of any of the persons subject to covenants-not-to-compete as of the date of this Agreement that provide for continuation of salary or any severance benefit payable on or after termination of employment in respect of any of the officers of the Company, including without limitation those persons subject to covenants-not-to-compete as of the date of this Agreement.
(m) The list of welfare plans in Section 2.12(a) of the Company Disclosure Schedule discloses whether each welfare plan is (i) unfunded, (ii) materially increase funded through a “welfare benefit fund”, as such term is defined in Section 419(e) of the amount Code, or value of any benefit other funding mechanism or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result insured. Each such welfare plan may be amended or terminated without liability to the Parent, Merger Sub or Company at any time after the date of this Agreement, except as may arise under Section 4980(B) of the Code. The Company and its ERISA Affiliates have complied and complies in all material respects with the applicable requirements of Section 4980B(f) of the Code with respect to each Benefit Plan that is a group health plan, as such term is defined in Section 4000(b)(1) of the Code.
(n) There are no corrections of any Benefit Plan pending under the Employee Plan Compliance Reconciliation System (as set forth in Internal Revenue Service Revenue Procedure 2001-17) (“EPCRS”). The Company has provided Parent with copies of all compliance agreements, memoranda, and such other documents produced under EPCRS with respect to a Benefit Plan.
(o) The Company has provided Parent with employment information and records as described in the acceleration Human Resources Agreement, and such information and records are complete and accurate.
(p) All Benefit Plans maintained outside of the time United States for the benefit of payment, vesting or funding Company employees are in material compliance with all applicable Laws of any the relevant jurisdiction in which such benefit or compensation, (ivBenefit Plans are maintained. Section 2.12(p) increase of the amount Company Disclosure Schedule sets forth a complete list of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made Benefit Plans maintained by the Company to any Personfor its employees based primarily in countries and territories other than the United States.
Appears in 1 contract
Samples: Merger Agreement (Ndchealth Corp)
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a) of the Company Disclosure Letter lists, with respect to the Company and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) lists all “employee benefit plans” which are maintained or contributed to by the Company or the Israeli Subsidiary for its employees (i) within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) of the Company , irrespective of whether such plan is managed outside the United States, (ii) each loan to an employeea current employee of the Company or the Israeli Subsidiary, (iii) other than the Company Option Equity Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangements, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”).
(b) The Company has made available furnished to Acquirer’s counsel Buyer a true, correct and complete copy of each of the Company Employee Plans and related plan documents. The Company does not sponsor or maintain any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy applies.
(c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law and the Company has complied with the requirements of COBRA. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No Company Employee Plan is covered by, and neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time Closing in accordance with its terms, without Liability to Acquirer Buyer (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge Knowledge of the CompanyCompany or the Israeli Subsidiary, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of LaborLabor or their Isreali counterparts.
(d) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension Each type of compensation and benefit plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(e) Neither the Company nor ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code.
(f) No Company Employee Plan is sponsored, maintained or contributed to by the Company or the Israeli Subsidiary under the law or applicable custom or rule of the any relevant jurisdiction outside of the United StatesStates as of the Agreement Date (each such plan, a “Foreign Plan”) is listed in Schedule 2.11(d) of the Company Disclosure Letter. As regards each Foreign Plan, except as set forth on Schedule 2.11(d) of the Company Disclosure Letter, (i) such Foreign Plan is in material compliance with the provisions of the Legal Requirements of each jurisdiction in which such Foreign Plan is maintained, to the extent those Legal Requirements are applicable to such Foreign Plan (and, specifically, with respect to Section 102 of the Israeli Tax Code and the regulations promulgated thereunder in all material respects, the Company has complied with the applicable requirements of Section 102 of the Israeli Tax Code and the regulations promulgated thereunder and any publications issued by the ITA in all material respects, including the timely deposit and notification to the Section 102 Trustee and the ITA of Company 102 Awards and Company 102 Shares), (ii) all contributions and material payments to such Foreign Plan which may have been required to be made in accordance with the terms of such Foreign Plan, and, when applicable, the Legal Requirements of the jurisdiction in which such Foreign Plan is maintained, have been timely made or shall be made by the Closing Date, and all such contributions to such Foreign Plan, and all payments under such Foreign Plan, for any period ending before the Closing Date that are not yet, but will be, required to be made, are reflected as an accrued liability on the Company Balance Sheet, (iii) such Foreign Plan has been administered in all material respects at all times in accordance with its terms and applicable Legal Requirements, (iv) there are no pending investigations by any Governmental Entity involving such Foreign Plan to the Company’s Knowledge, and no pending claims to the Company’s Knowledge, and neither the Company nor any Company Subsidiary has received any written notice from any Governmental Entity with respect to any claim (except for claims for benefits payable in the normal operation of such Foreign Plan), suit or a written notice regarding proceeding against such Foreign Plan or asserting any rights or claims to benefits under such Foreign Plan, (v) the consummation of the transactions contemplated by this Agreement is not expected to create or otherwise result in any Liability with respect to such Foreign Plan, and (vi) except as required by applicable Legal Requirements, no condition exists that would prevent the Company or the Israeli Subsidiary from terminating or amending any Foreign Plan at any time for any reason in accordance with the terms of each such Foreign Plan without the payment of any fees, costs or expenses (other than the payment of benefits accrued on the Company Balance Sheet and any normal and reasonable expenses typically incurred in a termination event). No Foreign Plan has unfunded material Liabilities that will not be offset by insurance or that are not fully accrued on the financial statements of the Company.
(ge) The All Company is Awards currently outstanding which were granted by the Company to its Israeli officers, directors and employees were granted under the Company Equity Plan, which was filed for approval with the ITA under the capital gains route of Section 102 of the Israel Tax Code for the purpose of granting options under the capital gains route under Section 102 of the Israeli Tax Code and are subject to tax under the capital gains route under Section 102 of the Israeli Tax Code.
(f) Except as set forth in Schedule 2.11(f) of the Company Disclosure Letter, the Company and the Israeli Subsidiary are in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not materially engaged in any unfair labor practicepractice and specifically with respect to the Israeli Employees (and without limiting the foregoing), the Company and the Israeli Subsidiary are in compliance with all Legal Requirements applicable to the Israeli Employees, including The Israeli Prior Notice to the Employee Law, 2002, The Israeli Advance Notice of Discharge and Resignation Law, (5761-2001), The Israeli Notice to Employee (Terms of Employment) Law (5762-2002), the Israeli Hours of Work and Rest Law, 1951, The Israeli Prevention of Sexual Harassment Law (5758-1998), and The Employment of Employee by Manpower Contractors Law (5756-1996) (in each case, as amended). The Company is and the Israeli Subsidiary have not engaged any Israeli Employees whose employment would require special approvals. Neither the Company nor the Israeli Subsidiary are liable for any arrears of wages, compensation, TaxesTaxes (including social security), penalties or other sums for failure to comply with any of the foregoing. The Company has and the Israeli Subsidiary have paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants, all as applicable. The Neither the Company is not and the Israeli Subsidiary are liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice). Every employee of the Company or the Israeli Subsidiary who requires a visa, employment pass or other required permit to work in the country in which he is employed has a current employment pass or such other required permit and all necessary permission to remain in such country.
(hg) Neither Except as required under applicable Legal Requirements (excepting, for this purpose, any Orders which generally apply in Israel or in the Company’s and/or the Israeli Subsidiary’s general area of business), neither the execution or delivery of this Agreement or the other Transaction Documents nor the consummation of the transactions contemplated by this Agreement hereby or thereby or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other a subsequent event, (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwiseotherwise but excluding any termination payments in accordance with Legal Requirements (excepting, for this purpose, any Orders which generally apply in Israel or in the Company’s and/or the Israeli Subsidiary’s general area of business)) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company or a Subsidiary to any Person.. No amount paid or payable by the Company or a Subsidiary in connection with the transactions contemplated by this Agreement or the other Transaction Documents, whether alone or in combination with another event, will be an “excess parachute payment” within the meaning of Code Section 280G or Code Section 4999 or will not be deductible by the Company by reason of Code Section 280G.
(h) Solely with respect to employees who reside or work in Israel (“Israeli Employees”): (i) neither the Company nor the Israeli Subsidiary is a party to any collective bargaining Contract, collective labor agreement or other Contract or arrangement with a labor union, trade union or other organization or body representing any of its Israeli Employees, (ii) neither the Company nor the Israeli Subsidiary has recognized or received a demand for recognition from any collective bargaining representative with respect to any of its Israeli Employees, (iii) except as detailed in Schedule 2.10(a)h) of the Company Disclosure Letter, neither the Company nor the Israeli Subsidiary has or is subject to, and no Israeli Employee of the Company or the Israeli Subsidiary benefits from, any extension order (‘tzavei harchava’), except for extension orders which generally apply to all employees in Israel or to all employees in the Israeli Subsidiary’s general area of business, (iv) all of the Israeli Employees are “at will” employees or are subject to the termination notice provisions included in employment agreements or applicable Legal Requirements, including such provisions that apply to the Company’s and the Subsidiaries’ employees generally or any part thereof under any applicable collective agreement or arrangement, and (v) except as detailed in Schedule 2.10(a)h) of the Company Disclosure Letter, (a) the Company’s or the applicable Subsidiary’s obligations to provide vacation pursuant to the Israeli Annual Leave Law-1951 and any personal employment agreement have been satisfied or have been fully accrued on the Company’s financial statements and (b) the arrangement regulated in the General Order published under Section 14 of the Severance Pay Law 1963 applies to all of the Israeli Employees and accordingly the Company’s or the applicable Israeli Subsidiary’s obligations to provide severance pay to its Israeli
Appears in 1 contract
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a2.15(a) of the Company Disclosure Letter listssets forth a true, with respect complete, up-to-date and accurate list of all written or oral employee benefit, welfare, supplemental unemployment benefit, bonus, pension, profit sharing, executive compensation, current or deferred compensation, incentive compensation, share compensation, share purchase, share option, share appreciation, phantom share option, savings, severance or termination pay, retirement, supplementary retirement, hospitalization insurance, salary continuation, legal, health or other medical, dental, life, disability or other insurance (whether insured or self-insured) plan, program, agreement or arrangement, and every other similar written or oral benefit plan, program, agreement or arrangement sponsored, maintained or contributed to or required to be contributed to by the Company Company, any Subsidiary and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangements, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain Subsidiary for the benefit ofof its Employees or former Employees and their dependants or beneficiaries at any time in the last five years or as provided by any collective agreement to which the Company is a party or by which it is, or relating towas at any time in the last five years, any present bound or former employee, consultant or non-employee director of with respect to which the Company participates or has any actual or potential liability or obligations, other than plans established pursuant to statute (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”).
(b) The Company has furnished or made available to Acquirer’s counsel a the Acquiror true, correct correct, up-to-date and complete copy copies of all the Company Employee Plans (or, where oral, written summaries of the material terms thereof) as amended as of the date hereof together with all related material documentation including as applicable, (i) annuity contracts, trust agreements, investment management agreements and funding agreements, (ii) actuarial reports for the past three (3) years, funding and financial information returns and statements, asset valuations, collective agreements, all professional opinions (whether or not internally prepared) with respect to each Company Employee Plan and all material internal memoranda concerning the Company Employee Plans, (iii) copies of material correspondence during the past three (3) years between the Company and any Governmental Entity with respect to each Company Employee Plan, and (iv) current plan summaries, employee booklets and personnel manuals, in each case, to the extent such materials were prepared by or for the Company or any Subsidiary or at its request or to the extent that such materials are contained in the records of the Company or any Subsidiary. The booklets, brochures, summaries, descriptions and manuals prepared for, and circulated to, the Employees and former Employees (to the extent currently applicable) and their beneficiaries concerning each Company Employee Plan, accurately describe, as of the date of preparation, circulation or communication, as applicable, the benefits provided under each such Company Employee Plan referred to therein.
(c) All of the Company Employee Plans have been established, registered, qualified, funded, invested and related plan documentsadministered in all material respects in accordance with, and are in good standing under, all applicable laws and the terms of such Company Employee Plans. The There is no material understanding, written or oral, between the Company does not sponsor or maintain the applicable Subsidiary and the Employees or former Employees different than the written terms of the Company Employee Plans. No fact or circumstance exists that could reasonably be expected to adversely affect the tax-preferred or tax-exempt status of any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy applies.
(cd) No Company Employee Plan is a “registered pension plan” as that term is defined in subsection 248(1) of the Tax Act.
(e) No increases in benefits under any Company Employee Plan have been promised that are not reflected in the documentation set out in Schedule 2.15(a) of the Company Disclosure Letter.
(f) None of the Company Employee Plans promises provides post-retirement benefits other than pension or provides retiree medical savings plan benefits or other retiree welfare COBRA benefits to or in respect of the Employees or any person other than as former Employees or to or in respect of the beneficiaries of such Employees and former Employees.
(g) All obligations of the Company or any Subsidiary regarding the Company Employee Plans have been satisfied and, to the knowledge of the Company, there are no outstanding defaults or violations by any party thereto that could reasonably be expected to give rise to material Liability to the Company or any Subsidiary, and no material taxes, penalties or fees are owing or eligible by the Company or any Subsidiary under any of the Company Employee Plans.
(h) All contributions or premiums required to be made by the Company or any Subsidiary under the Consolidated Omnibus Budget Reconciliation Act terms of 1985each Company Employee Plan, as amended (“COBRA”) any collective bargaining agreement or similar state by law have been made in a timely fashion in all material respects in accordance with applicable law and the Company has complied with the requirements of COBRA. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 terms of the Code Company Employee Plans and any applicable collective bargaining agreement, and the Company does not exempt under Section 408 have, and as of ERISA and regulatory guidance thereunderthe Closing Date will not have, any actual or potential unfunded liabilities (other than liabilities accruing after the Closing Date) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No All material liabilities of the Company (whether accrued, absolute, contingent or otherwise) related to all Company Employee Plan is covered by, Plans have been fully and neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time accurately disclosed in accordance with its terms, without Liability to Acquirer (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(e) Neither the Company nor ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code.
(f) No Company Employee Plan is sponsored, maintained or contributed to under the law or applicable custom or rule of the any jurisdiction outside of the United States.
(g) The Company is in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice. The Company is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Company has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made GAAP in the normal course of business and consistently with past practice)Financial Statements.
(h) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person.
Appears in 1 contract
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(aThe Company has provided or made available to Acquiror (or Acquiror’s Representatives) a list of the names (where permitted by law), titles, annual salaries (or wage rates for non-salaried employees) and other compensation of all employees of the Company and the Company Subsidiaries.
(b) Section 2.16(b) of the Company Disclosure Letter listssets forth, with respect to the Company and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Codedate hereof, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974each deferred compensation and each bonus, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock optionincentive compensation, stock purchase, phantom stockstock option and other equity compensation plan, stock appreciation rightprogram, supplemental retirement, severance, sabbaticalagreement or arrangement; each severance or termination pay, medical, dentalsurgical, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code)hospitalization, life insurance and other “welfare” plan, fund or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangements, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”).
(b) The Company has made available to Acquirer’s counsel a true, correct and complete copy of each of the Company Employee Plans and related plan documents. The Company does not sponsor or maintain any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy applies.
(c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law and the Company has complied with the requirements of COBRA. There has been no “prohibited transaction” program (within the meaning of Section 406 3(1) of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutesERISA); each profit-sharing, rules and regulations (including ERISA and the Code)stock bonus or other “pension” plan, and the Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under fund or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No Company Employee Plan is covered by, and neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan program (within the meaning of Section 3(2) of ERISA); and any other material employee benefit plan, fund, program, agreement or arrangement, in each case, that is currently sponsored, maintained or contributed to or required to be contributed to by the Company or any Company Subsidiary, or to which the Company or any Company Subsidiary, is party, for the benefit of any employee of the Company or any Company Subsidiary (collectively, the “Company Employee Plans”). A true and complete copy of each Company Employee Plan has been provided or made available to Acquiror (or Acquiror’s Representatives).
(c) Section 2.16(c) of the Company Disclosure Letter sets forth, and the Acquiror has been provided a copy of, each employment, termination or severance agreement (other than agreements customarily entered into with employees in jurisdictions other than the United States providing the statutory minimum termination notice period or severance benefits, in which is case the form of such agreement has been provided or made available to Acquiror (or Acquiror’s Representatives)) with an employee (or former employee, to the extent obligations of the Company remain outstanding) of the Company or any Company Subsidiary and any service agreement with any independent contractor.
(d) Neither the Company nor any of the Company Subsidiaries, nor any other entity with which the Company would be considered under common control under ERISA, does now, or did at any time in the past, sponsor, maintain or contribute to any plan subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or a multiemployer plan, as defined in Section 412 3(37) of ERISA. No liability under Title IV or Section 302 of ERISA has been incurred by the CodeCompany with respect to a Company 40 Employee Plan that has not been satisfied in full, and no condition exists that presents a risk to Acquiror of incurring any such liability with respect to a Company Employee Plan. No non-U.S. Company Employee Plan is a defined benefit plan.
(e) Neither the Company nor ERISA Affiliate is a party toany Company Subsidiary has any current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) current employees of ERISA the Company or any “multiple employer plan” Company Subsidiary, except as such term is defined in required to avoid excise tax under Section 413(c) 4980B of the CodeCode or similar local, state or non-U.S. laws.
(f) No There are no loans outstanding from the Company Employee Plan is sponsored, maintained or contributed any Company Subsidiary to under the law any employee or applicable custom or rule of the any jurisdiction outside of the United Statesdirector.
(g) The Company is Except as set forth in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice. The Company is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any Section 2.16(g) of the foregoing. The Company has paid in full to all employeesDisclosure Letter, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice).
(h) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement (whether alone or together with another event, such as a termination of employment) will not (i) entitle any employee or officer of the Company or any termination of employment or service Company Subsidiary to severance pay, unemployment compensation or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payablepayment, or required to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of accelerate the time of paymentpayment or vesting, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due or require any funding of any future payment, any such employee or officer.
(h) Except as set forth in Section 2.16(h) of the Company Disclosure Letter, there is no Contract, plan or arrangement (written or otherwise) covering any employee or former employee of the Company or any Company Subsidiary that, individually or collectively, could give rise to the payment of any Personamount that would not be deductible pursuant to the terms of Section 280G of the Code.
(i) There are no pending, or (v) result in to the forgiveness in whole Knowledge of the Company, threatened claims by or in part on behalf of any outstanding loans made Company Employee Plan, by any employee or beneficiary covered under any such Company Employee Plan (other than routine claims for benefits) and each Company Employee Plan has been established and maintained in all material respects in accordance with applicable Legal Requirements.
(j) Each Company Employee Plan has been operated in all material respects in accordance with its terms and applicable Legal Requirements.
(k) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service, or has pending or has time remaining in which to file, an application for such letter from the Internal Revenue Service, and the Company is not aware of any reason why any such letter should be revoked or not be reissued. The Company has made available to Buyer copies of the most recent Internal Revenue Service determination and/or opinion letters with respect to each such Company Employee Plan.
(l) Section 2.16(l) of the Company Disclosure Letter lists, as of the date hereof, all collective bargaining agreements, union contracts and similar agreements in effect that cover any Personemployees of the Company or any Company Subsidiary (each, a “Collective Bargaining Agreement”).
(m) There is no labor strike, lockout or stoppage pending or, to the Knowledge of the Company, threatened against the Company or any Company Subsidiary.
(n) The Company and the Company Subsidiaries are in compliance in all material respects with all Legal Requirements respecting employment and employment practices, terms and conditions of employment, wages and hours, and worker classification.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a2.13(a) of the Company Disclosure Letter lists, with respect to the Company or its Subsidiaries and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangementsarrangements that apply to senior management and that do not generally apply to all employees, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company or any of its Subsidiaries of greater than $1,000 remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company or such Subsidiary (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”). Correct and complete copies of all material documentation relating to the Company Employee Plans have been provided to Acquirer prior to the Agreement Date.
(b) The Company has made available to Acquirer’s counsel a true, correct and complete copy of each of the Company Employee Plans and related plan documents. The Company does not sponsor or maintain any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy applies.
(c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law and the Company has complied with the requirements of COBRA. There To the Knowledge of the Company, there has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in accordance with its terms and in substantial compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge Knowledge of any default or violation by any other party to, any of the Company Employee Plans. No Company Employee Plan is covered by, and neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge Knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(dc) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(ed) Neither the Company nor ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code.
(fe) No Each Company Employee Plan is sponsored, maintained or contributed to under the law or applicable custom or rule of the any relevant jurisdiction outside of the United StatesStates (each such plan, a “Foreign Plan”) is listed in Schedule 2.13(e) of the Company Disclosure Letter. Each Foreign Plan, is in compliance with its terms and the provisions of the Legal Requirements of each jurisdiction in which such Foreign Plan is maintained, to the extent those Legal Requirements are applicable to such Foreign Plan, (ii) there are no pending investigations by any governmental body involving such Foreign Plan, and no pending claims (except for claims for benefits payable in the normal operation of such Foreign Plan), suits or proceedings against such Foreign Plan or asserting any rights or claims to benefits under such Foreign Plan, (vi) the consummation of the transactions contemplated by this Agreement will not by itself create or otherwise result in any Liability with respect to such Foreign Plan, and (vii) except as required by applicable Legal Requirements, no condition exists that would prevent the Company from terminating or amending any Foreign Plan at any time for any reason in accordance with the terms of each such Foreign Plan without the payment of any fees, costs or expenses (other than the payment of benefits accrued on the Company balance sheet and any normal and reasonable expenses typically incurred in a termination event.
(gf) The Each of the Company and its Subsidiaries is in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice. The Each of the Company and its Subsidiaries has withheld all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to employees; and is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Each of the Company and its Subsidiaries has maintained adequate up-to-date records regarding the service of its employees and has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Neither the Company nor any of its Subsidiaries is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice). There is no litigation or controversies pending or, to the Knowledge of the Company, threatened, between the Company or any of its Subsidiaries and any of their respective employees or any trade union or other organization formed for a similar purpose or any other employee representative(s), which controversies have or would reasonably be expected to result in an action, suit, proceeding, claim, arbitration or governmental investigation and, to the Knowledge of the Company, there are no circumstances which are likely to give rise to such litigation or controversies.
(g) Schedule 2.13(g) of the Company Disclosure Letter sets forth a true, correct and complete list as of the Agreement Date of all severance Contracts and employment Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound. Neither the Company nor any of its Subsidiaries has any obligation to pay any amount or provide any benefit to any former employee or officer, other than obligations (i) for which Company has established a reserve for such amount on the Company Balance Sheet and (ii) pursuant to Contracts entered into after the Company Balance Sheet Date and disclosed on Schedule 2.13(g) of the Company Disclosure Letter. Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining agreement or other labor union Contract, no collective bargaining agreement is being negotiated by the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries has any duty to bargain with any labor organization. There is no pending demand for recognition or any other request or demand from a labor organization for representative status with respect to any Person employed by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has Knowledge of any activities or proceedings of any labor union or to organize their respective employees. There is no labor dispute, strike or work stoppage against the Company or any of its Subsidiaries pending or, to the Knowledge of the Company, threatened which may interfere with the respective business activities of the Company or any of its Subsidiaries. Neither the Company, any Subsidiary of the Company, nor to the Knowledge of the Company any of their respective representatives or employees, has committed any unfair labor practice in connection with the operation of the Business, and there is no charge or complaint against the Company by the National Labor Relations Board or any comparable Governmental Entity pending or to the Knowledge of the Company, threatened.
(h) To the Knowledge of the Company, no employee of the Company or any of its Subsidiaries is in violation of any term of any employment agreement, non-competition agreement, or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company because of the nature of the Business or to the use of trade secrets or proprietary information of others. Except as set forth on Schedule 2.13(h) of the Company Disclosure Letter, no employee of the Company or any of its Subsidiaries has given notice to the Company or such Subsidiary or is under a notice of dismissal, nor does the Company or such Subsidiary otherwise have knowledge, that any such employee intends to terminate his or her employment with the Company or such Subsidiary. The employment of the employees of the Company or any of its Subsidiaries is “at will” and neither the Company nor any of its Subsidiaries has any obligation to provide any particular form or period of notice prior to terminating the employment of any of their respective employees, except as set forth on Schedule 2.13(h) of the Company Disclosure Letter. As of the date hereof, neither the Company nor any of its Subsidiaries has (i) entered into any Contract that obligates or purports to obligate Acquirer to make an offer of employment to any present or former employee or consultant of the Company or such Subsidiary and/or (ii) promised or otherwise provided any assurances (contingent or otherwise) to any present or former employee or consultant of the Company or such Subsidiary of any terms or conditions of employment with Acquirer following the Closing Date.
(i) Schedule 2.13(i) of the Company Disclosure Letter sets forth a true, correct and complete list of the names, positions and rates of compensation of all officers, directors, and employees of the Company, showing each such person’s name, position, annual base salary, target bonus and target commissions, status as exempt/non-exempt, for the current fiscal year and the most recently completed fiscal year.
(j) The Company has provided to Acquirer a true, correct and complete list of all of its consultants, advisory board members and independent contractors and for each the initial date of the engagement and whether the engagement has been terminated by written notice by either party.
(k) The Company has provided to Acquirer’s counsel true, correct and complete copies of each of the following: all forms of offer letters; all forms of employment agreements and severance agreements; all forms of services agreements and agreements with current and former consultants and/or advisory board members; all forms of confidentiality, non-competition or inventions agreements between current and former employees/consultants and the Company (and a true, correct and complete list of employees, consultants and/or others not subject thereto); the most current management organization chart(s); all agreements and/or insurance binders, which insurance binders shall provide a complete and correct summary of the underlying insurance policies, providing for the indemnification of any officers or directors of the Company and a summary of Liability for termination payments to current and former directors, officers and employees of the Company.
(l) The Company has delivered to Acquirer true and complete copies of all election statements under Section 83(b) of the Code that are in the Company’s possession with respect to any unvested securities or other property issued by the Company or any ERISA Affiliate to any of their respective employees, non-employee directors, consultants and other service providers.
(m) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) ), except as permitted by Section 1.8(a)(iv), becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person.. No amount paid or payable by the Company in connection with the transactions contemplated by this Agreement, whether alone or in combination with another event, will be an “excess parachute payment” within the meaning of Code Section 280G or Code Section 4999 or will not be deductible by the Company by reason of Code Section 280G.
Appears in 1 contract
Employee Benefit Plans and Employee Matters. (a) 3.19.1. Schedule 2.11(a) of the Company Disclosure Letter lists, with respect to the Company and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, 3.19.1 lists (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock option, stock profits interest, equity purchase, phantom stockequity, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), flexible spending account, dependent care (Section 129 of the Code), life insurance or accident insurance insurance, vacation pay, salary continuation for disability, sick leave, paid time off, death, profit sharing, education, legal services, employee assistance, long term care, incentive or fringe benefit plans, programs or arrangements, (iviii) all other bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangements, and (viiv) all employment or executive compensation Compensation or severance agreementsagreements or offer letters, written in each case, whether or otherwisenot reduced to writing, as sponsored, maintained, contributed to which any unsatisfied obligations of (or required to be contributed to) by the Company remain or for the benefit of, or relating to, any present current or former member, employee, consultant or non-employee director manager of the Company, or any of their respective dependents or beneficiaries, or with respect to which the Company has any liability (all of the foregoing described in contingent or otherwise) (clauses (i) through – (vi), collectivelyiv) together, the “Company Employee Plans”).
(b) 3.19.2. The Company has furnished or made available to Acquirer’s counsel the Buyer a true, correct and complete copy of each of the Company Employee Plans and related plan documents (including trust documents, insurance policies or Contractual Obligations, employee booklets, summary plan descriptions and other authorizing documents) and any amendments thereto and has, with respect to each Company Employee Plan which is subject to ERISA reporting requirements, provided to the Buyer true, correct and complete copies of the Form 5500 reports filed for the last three plan years, if any. The Each Company does not sponsor Employee Plan that is intended to be qualified under Code Section 401(a) has received a favorable determination letter from the Internal Revenue Service, or maintain any self-funded with respect to a prototype plan, can rely on an opinion or determination letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that the form of such Company Employee 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 result in the loss of the qualified status of such Company Employee Plan.
3.19.3. Each Company Employee Plan has been administered in all material respects in accordance with its terms and in compliance with the applicable requirements prescribed by any and all statutes, includingrules and regulations (including ERISA and the Code). All contributions required to be made by the Company or any ERISA Affiliate to any Company Employee Plan have been made as required by applicable Legal Requirements and the terms of the relevant Company Employee Plan and at the time(s) required by Applicable Legal Requirements. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, and Applicable Law, without limitationmaterial Liability to the Buyer and/or the Surviving Company (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action or other litigation has been brought, or to the Company’s Knowledge, is threatened, against or with respect to any plan to which such Company Employee Plan (other than routine claims for benefits). No Company Employee Plan is or, within the last six years, has been the subject of an examination or audit by a stopGovernmental Authority, is the subject of an application or filing under, or is a participant in, a government-loss policy appliessponsored amnesty, voluntary compliance, self-correction or similar program.
(c) 3.19.4. None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law and the Company has complied with the requirements of COBRA. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No Company Employee Plan is covered by, and neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of LaborLegal Requirement.
(d) 3.19.5. Neither the Company nor any current or former ERISA Affiliate currently maintains, sponsors, participates in in, contributes to or contributes is required to contribute to, or has ever maintained, established, sponsored, participated in, contributed to or contributed been required to contribute to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(e) Neither the Company nor ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, including any “multiemployer plan” as such term is defined in Section Sections 3(37) or 4001(a)(8) of ERISA, and no condition exists that presents a risk to the Company of incurring any material liability under Title IV of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) 412 or Section 430 of the Code.
(f) 3.19.6. No Company Employee Plan is sponsored, maintained or contributed to under sponsored primarily for the law benefit of current or applicable custom former employees or rule service providers located outside of the United States or is subject to the Laws of a jurisdiction other than the United States, and neither the Company nor any of its Affiliates has any obligation to provide for statutorily mandated benefits in a jurisdiction outside of the United States.
3.19.7. Except as set forth on Schedule 3.19.7, none of the execution and delivery of this Agreement, the consummation of the Merger or any other Contemplated Transaction or any termination of employment or service in connection therewith or subsequent thereto will, individually or together with the occurrence of some other event, (ga) result in any payment (including severance, bonus or other similar payment) becoming due to any Person, (b) increase or otherwise enhance any benefits otherwise payable by the Company, (c) result in the acceleration of the time of payment or vesting of any such benefits, (d) increase the amount of Compensation due to any Person, or (e) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person.
3.19.8. The Company is is, and has been since January 1, 2010, in compliance in all material respects with all currently applicable Legal Requirements respecting employmentemployment and employment practices, discrimination in employmentincluding but not limited to those respecting discrimination, terms and conditions of employment, worker classification (including the proper classification of workers as employees, independent contractors and consultants, as exempt or non-exempt for overtime pay and for all Tax purposes and for purposes of determining eligibility to participate in any Company Employee Plans), wages, hours and hours, occupational safety and health health, immigration, layoffs and employment practices, including the Immigration Reform and Control Actplant closings or shut-downs, and is the Company has not engaged in any unfair labor practice. The Company is not liable for any arrears of wages, compensation, Taxes, penalties practice as defined in the National Labor Relations Act or other sums for failure to comply with any of the foregoinganalogous Legal Requirement. The Company has paid in full not received notice of any charge, complaint or other proceeding pending or threatened before the National Labor Relations Board or any other Governmental Authority relating to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to employment or on behalf of such employees, independent contractors and consultantsemployment practices. The Company is not liable for any payment to any trust or other fund or to any Governmental EntityAuthority, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice).
(h) Neither 3.19.9. The Company is not a party to or bound by any collective bargaining agreement or other labor union Contractual Obligation or arrangement, and no collective bargaining agreement is being negotiated by the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement or any termination of employment or service Company. To Company’s Knowledge, there is no pending demand for recognition or any other event request or demand from a labor organization for representative status with respect to any Person employed by the Company. To the Company’s Knowledge there are no activities, petitions or proceedings of any labor union, works council, or similar organization or to organize its employees. There is no labor dispute, strike, lockout, slowdown or work stoppage against or affecting the Company pending or, to the Company’s Knowledge, threatened in connection therewith writing.
3.19.10. Except as set forth on Schedule 3.19.10, no employee of the Company has given notice of intention to terminate employment in writing to the Company and to the Company’s Knowledge, no such employee intends to terminate his or subsequent thereto will, individually or together or her employment with the occurrence Company. The employment of some other event, each of the employees of the Company is “at will” (whether contingent except for non-U.S. employees of the Company located in a jurisdiction that does not recognize the “at will” employment concept) and the Company has no obligation to provide any particular form or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required period of notice prior to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase terminating the amount or value employment of any benefit or compensation otherwise payable or required to be provided to any current or former employeeof its employees, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Personexcept as set forth on Schedule 3.19.
Appears in 1 contract
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(aSection 4.17(a) of the Company Disclosure Letter listsSchedule sets forth a true and complete list of each “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and each and every other written, unwritten, formal or informal plan, agreement, program, policy or other arrangement involving direct or indirect compensation (other than workers’ compensation, unemployment compensation and other government programs), employment, severance, consulting, disability benefits, supplemental unemployment benefits, vacation benefits, retirement benefits, deferred compensation, profit-sharing, bonuses, stock options, stock appreciation rights, other forms of incentive compensation, post-retirement insurance benefits or other benefits entered into, maintained or contributed to by the Company or with respect to which the Company has or may in the future have any Liability, contingent or otherwise. Each plan, agreement, program, policy or arrangement required to be set forth in the Company Disclosure Schedule pursuant to the foregoing is referred to herein as a “Benefit Plan”. No Benefit Plan is maintained outside the jurisdiction of the United States or covers any employee residing or working outside the United States. ** ** Text Omitted and Filed Separately with the Securities and Exchange Commission. Confidential Treatment Requested Under 17 C.F.R. Sections 200.80(b)(4) and 240.24b-2
(b) The Company has delivered the following documents to the Purchaser, with respect to each Benefit Plan, (i) correct and complete copies of all documents embodying such Benefit Plan, including all amendments thereto, and all related trust documents, (ii) a written description of any Benefit Plan that is not set forth in a written document, (iii) the most recent summary plan description together with the summary or summaries of modifications thereto, if any, (iv) each annual actuarial valuation, if any, for the past two years, (v) all Internal Revenue Service (“IRS”) or Department of Labor (“DOL”) determinations, opinions, notifications and advisory letters, (vi) each annual report, Form Series 5500 and all schedules and financial statements attached thereto, if any, for the past two years, (vii) all correspondence to or from any Governmental Entity for the past two years, (viii) all discrimination tests for the past two years, and (ix) all written Contracts currently in effect, including administrative service agreements, group annuity contracts and group insurance contracts.
(c) Each Benefit Plan has been maintained and administered in all respects in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations (foreign and domestic), including ERISA and the Code, which are applicable to such Benefit Plans. All contributions, reserves or premium payments required to be made or accrued to the Benefit Plans have been timely made or accrued. With respect to each Benefit Plan intended to be qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code either (i) the Company has obtained a currently effective favorable determination, notification, advisory or opinion letter, as applicable, as to such Benefit Plan’s qualified status (or the qualified status of the master or prototype form on which it is established) from the IRS covering the amendments to the Code effected by the Tax Reform Act of 1986 and all subsequent legislation for which the IRS will currently issue such a letter, and no amendment to such Benefit Plan has been adopted since the date of such letter covering such Benefit Plan that would adversely affect such favorable determination, notification, advisory or opinion letter, as applicable; or (ii) there remains a period of time in which to apply for or receive such a letter and to make any trade amendments necessary to obtain a favorable determination, notification, advisory or business opinion letter, as applicable.
(whether d) No plan currently or not incorporated) which is treated as a single employer with ever in the past maintained, sponsored, contributed to or required to be contributed to by the Company or any of its current or former ERISA Affiliates is or ever in the past was (an i) a “multiemployer plan” (as defined in Section 3(37) of ERISA), (ii) a plan described in Section 413 of the Code, (iii) a plan subject to Title IV of ERISA, (iv) a plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA, or (v) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code. The term “ERISA Affiliate”) ” means any Person that, together with the Company, would be deemed a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each loan to an employee, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangements, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”).
(b) The Company has made available to Acquirer’s counsel a true, correct and complete copy of each of the Company Employee Plans and related plan documents. The Company does not sponsor or maintain any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy applies.
(c) None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law and the Company has complied with the requirements of COBRA. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No Company Employee Plan is covered by, and neither the Company nor ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer (other than ordinary administrative expenses typically incurred in a termination event). No suit, administrative proceeding, action, litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) Neither the Company nor current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(e) Neither the Company nor ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code.
(f) No Company Employee Plan is sponsored, maintained or contributed to under the law or applicable custom or rule of the any jurisdiction outside of the United States.
(g) The Company is in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice. The Company is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Company has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice).
(h) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person.
Appears in 1 contract
Employee Benefit Plans and Employee Matters. (a) 3.15.1. Schedule 2.11(a) 3.15.1 of the Company Disclosure Letter Schedule lists, with respect to the Company and any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each loan to an employeeemployee in excess of $10,000, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangementsarrangements that apply to senior management and that do not generally apply to all employees, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company of greater than $10,000 remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director manager (or director, as the case may be) of the Company (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”, and each a “Company Employee Plan”).
(b) 3.15.2. The Company has made available furnished to Acquirer’s counsel Purchaser a true, correct and complete copy of each of the Company Employee Plans and related plan documents (including trust documents, insurance policies or Contracts, employee booklets, summary plan descriptions and other authorizing documents, and any material employee communications relating thereto) and has, with respect to each Company Employee Plan which is subject to ERISA reporting requirements, provided to Purchaser true, correct and complete copies of the Form 5500 reports filed for the last three plan years. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code, including all amendments to the Code effected by the Tax Reform Act of 1986 and subsequent legislation, or has applied (or has time remaining in which to apply) to the Internal Revenue Service for such a determination letter prior to the expiration of the requisite period under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination or has been established under a standardized prototype plan for which an Internal Revenue Service opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer. The Company has also provided to Purchaser a true, correct and complete copy of the most recent Internal Revenue Service determination or opinion letter issued with respect to each such Company Employee Plan, and nothing has occurred since the issuance of each such letter which would reasonably be expected to cause the loss of the Tax-qualified status of any Company Employee Plan subject to Section 401(a) of the Code. The Company has also provided to Purchaser all registration statements and prospectuses prepared in connection with each Company Employee Plan. All individuals who, pursuant to the terms of any Company Employee Plan, are entitled to participate in any Company Employee Plan, are currently participating in such Company Employee Plan or have been offered an opportunity to do so and have declined in writing. No employee of the Company and no person subject to any health plan of the Company has made medical claims through any such health plan during the 12 months preceding the date hereof for more than $25,000 in the aggregate for which the Company is responsible. For the purposes of the forgoing sentence, any exception to such representation and warranty set forth in the Disclosure Letter shall be stated generally and shall not identify any employee of the Company or person subject to any health plan of the Company who has made medical claims. The Company does not sponsor or maintain any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy appliesemployee benefit plan.
(c) 3.15.3. None of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) ), or similar state law and the Company has complied with the requirements of COBRAlaw. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Employee Plan. Each Company Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. Neither the Company nor any ERISA Affiliate is subject to any liability or penalty under Sections 4976 through 4980 of the Code or Title I of ERISA with respect to any of the Company Employee Plans. All contributions required to be made by the Company or any ERISA Affiliate to any Company Employee Plan have been made on or before their due dates and a reasonable amount has been accrued for contributions to each Company Employee Plan for the current plan years (and no further contributions will be due or will have accrued thereunder as of the Closing Date, other than contributions accrued in the ordinary course of business, consistent with past practice, after the Company Balance Sheet Date as a result of the operations of Company after the Company Balance Sheet Date). In addition, with respect to each Company Employee Plan intended to include a Code Section 401(k) arrangement, the Company and ERISA Affiliates have at all times made timely deposits of employee salary reduction contributions and participant loan repayments, as determined pursuant to regulations issued by the United States Department of Labor. No Company Employee Plan is covered by, and neither the Company nor any ERISA Affiliate has incurred or expects to incur any Liability liability under Title IV of ERISA or Section 412 of the Code. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time Closing in accordance with its terms, without Liability liability to Acquirer Purchaser and/or the Company (other than ordinary administrative expenses typically incurred in a termination event). With respect to each Company Employee Plan subject to ERISA as either an employee pension benefit plan within the meaning of Section 3(2) of ERISA or an employee welfare benefit plan within the meaning of Section 3(1) of ERISA, the Company has prepared in good faith and timely filed all requisite governmental reports (which were true, correct and complete as of the date filed), including any required audit reports, and has properly and timely filed and distributed or posted all notices and reports to employees required to be filed, distributed or posted with respect to each such Company Employee Plan. No suit, administrative proceeding, action, action or other litigation or claim has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
3.15.4. With respect to each Company Employee Plan, the Company has complied with (di) the applicable health care continuation and notice provisions of COBRA and the regulations (including proposed regulations) thereunder, (ii) the applicable requirements of the Family Medical and Leave Act of 1993 and the regulations (including proposed regulations) thereunder, (iii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations (including proposed regulations) thereunder, (iv) the applicable requirements of the Americans with Disabilities Act of 1990, as amended and the regulations (including proposed regulations) thereunder, (v) the Age Discrimination in Employment Act of 1967, as amended, and (vi) the applicable requirements of the Women’s Health and Cancer Rights Act of 1998 and the regulations (including proposed regulations) thereunder.
3.15.5. There has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any ERISA Affiliate relating to, or change in participation or coverage under, any Company Employee Plan which would materially increase the expense of maintaining such Company Employee Plan above the level of expense incurred with respect to such Company Employee Plan for the most recent fiscal year included in the Financial Statements. No Company Employee Plan will be subject to any surrender fees or service fees upon termination other than the normal and reasonable administrative fees associated with the termination of benefit plans.
3.15.6. Neither the Company nor any current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(e) . Neither the Company nor any ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code.
(f) No Company Employee Plan is sponsored, 3.15.7. Each compensation and benefit plan maintained or contributed to by the Company under the law or applicable custom or rule of the any relevant jurisdiction outside of the United States.
States (geach such plan, a “Foreign Plan”) The is listed in Schedule 3.15.7 of the Disclosure Schedule. As regards each Foreign Plan, (i) such Foreign Plan is in material compliance with the provisions of the Legal Requirements of each jurisdiction in which such Foreign Plan is maintained, to the extent those Legal Requirements are applicable to such Foreign Plan, (ii) all contributions to, and material payments from, such Foreign Plan which may have been required to be made in accordance with the terms of such Foreign Plan, and, when applicable, the Legal Requirements of the jurisdiction in which such Foreign Plan is maintained, have been timely made or shall be made by the Closing Date, and all such contributions to such Foreign Plan, and all payments under such Foreign Plan, for any period ending before the Closing Date that are not yet, but will be, required to be made, are reflected as an accrued liability on the Company Balance Sheet, (iii) the Company and each ERISA Affiliate has materially complied with all applicable reporting and notice requirements, and such Foreign Plan has obtained from the Governmental Entity having jurisdiction with respect to such Foreign Plan any required determinations, if any, that such Foreign Plan is in compliance with the Legal Requirements of the relevant jurisdiction if such determinations are required in order to give effect to such Foreign Plan, (iv) such Foreign Plan has been administered in all material respects at all times in accordance with all currently its terms and applicable Legal Requirements respecting employmentRequirements, discrimination in employment(v) to the knowledge of the Company, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Actthere are no pending investigations by any governmental body involving such Foreign Plan, and is not engaged in any unfair labor practice. The Company is not liable no pending claims (except for any arrears of wages, compensation, Taxes, penalties or other sums claims for failure to comply with any of the foregoing. The Company has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made payable in the normal course operation of business and consistently with past practicesuch Foreign Plan).
, suits or proceedings against such Foreign Plan or asserting any rights or claims to benefits under such Foreign Plan, (hvi) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will not by itself create or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (whether contingent or otherwise), (i) otherwise result in any material liability with respect to such Foreign Plan, and (vii) except as required by applicable Legal Requirements, no condition exists that would prevent the Company from terminating or amending any Foreign Plan at any time for any reason in accordance with the terms of each such Foreign Plan without the payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit fees, costs or compensation otherwise payable or required to be provided to expenses (other than the payment of benefits accrued through the date of termination and any current or former employee, director, independent contractor or consultant, (iii) result normal and reasonable expenses typically incurred in a termination event). The benefits available under all Foreign Plans in the acceleration aggregate do not provide materially greater benefits to employees of the time Company participating in such plans than the benefits available under the Company Employee Plans for employees of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result Company in the forgiveness in whole United States. No Foreign Plan has unfunded liabilities that will not be offset by insurance or in part that are not fully accrued on the financial statements of any outstanding loans made by the Company to any Personin accordance with GAAP.
Appears in 1 contract
Samples: Purchase Agreement (Answers CORP)
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a3.16(a) of the Company Disclosure Letter Acquiror Schedule of Exceptions lists, with respect to the Company Acquiror, any Subsidiary of Acquiror and any trade or business (whether or not incorporated) which is treated as a single employer with the Company Acquiror (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each outstanding loan to an employeeemployee in excess of $10,000, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangementsarrangements that apply to senior management and that do not generally apply to all employees, and (vi) all employment or executive compensation or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company Acquiror or any Subsidiary of Acquiror of greater than $10,000 remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company Acquiror or any Subsidiary of Acquiror (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Acquiror Employee Plans”).
(b) The Company Acquiror has made available furnished to AcquirerTarget’s counsel a true, correct and complete copy of each of the Company Acquiror Employee Plans and related plan documents (including trust documents, insurance policies or Contracts, employee booklets, summary plan descriptions and other authorizing documents, and any material employee communications relating thereto) and has, with respect to each Acquiror Employee Plan which is subject to ERISA reporting requirements, delivered to Target’s counsel true, correct and complete copies of the Form 5500 reports filed for the last three plan years. The Company does Any Acquiror Employee Plan intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code, including all amendments to the Code effected by the Tax Reform Act of 1986 and subsequent legislation, or has applied (or has time remaining in which to apply) to the Internal Revenue Service for such a determination letter prior to the expiration of the requisite period under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination or has been established under a standardized prototype plan for which an Internal Revenue Service opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer. Acquiror has also delivered to Target a true, correct and complete copy of the most recent Internal Revenue Service determination or opinion letter issued with respect to each such Acquiror Employee Plan, and nothing has occurred since the issuance of each such letter which would reasonably be expected to cause the loss of the Tax-qualified status of any Acquiror Employee Plan subject to Section 401(a) of the Code. Acquiror has also delivered to Target all registration statements and prospectuses prepared in connection with each Acquiror Employee Plan. No employee of Acquiror or any Subsidiary of Acquiror and no person subject to any health plan of Acquiror or any Subsidiary of Acquiror has made medical claims through any such health plan during the 12 months preceding the Agreement Date for more than $25,000 in the aggregate for which Acquiror or such Subsidiary of Acquiror is directly responsible. For the purposes of the forgoing sentence, any exception to such representation and warranty set forth in the Acquiror Schedule of Exceptions shall be stated generally and shall not sponsor identify any employee of Acquiror or maintain such Subsidiary of Acquiror or person subject to any health plan of Acquiror or such Subsidiary of Acquiror who has made medical claims. Neither Acquiror nor any Subsidiary of Acquiror sponsors or maintains any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy applies.employee benefit plan. Table of Contents
(c) None of the Company Acquiror Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law and the Company has complied with the requirements of COBRAlaw. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Acquiror Employee Plan, which could reasonably be expected to result, individually or in the aggregate with any such other “prohibited transactions,” in a material Liability to Acquiror or any of its Subsidiaries. Each Company Acquiror Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company Acquiror, each Subsidiary of Acquiror and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in any material respect in default under or in violation of, and has no knowledge of any material default or violation by any other party to, any of the Company Acquiror Employee Plans. Neither Acquiror nor any Subsidiary of Acquiror or ERISA Affiliate is subject to any Liability or penalty under Sections 4976 through 4980 of the Code or Title I of ERISA with respect to any of the Acquiror Employee Plans. All contributions required to be made by Acquiror, any Subsidiary of Acquiror or any ERISA Affiliate to any Acquiror Employee Plan have been made on or before their due dates and a reasonable amount has been accrued for contributions to each Acquiror Employee Plan for the current plan years (and no further contributions will be due or will have accrued thereunder as of the Closing Date, other than contributions accrued in the ordinary course of business, consistent with past practice, after the Acquiror Balance Sheet Date as a result of the operations of Acquiror and its Subsidiaries after the Acquiror Balance Sheet Date). In addition, with respect to each Acquiror Employee Plan intended to include a Code Section 401(k) arrangement, Acquiror, its Subsidiaries and ERISA Affiliates have at all times made timely deposits of employee salary reduction contributions and participant loan repayments, as determined pursuant to regulations issued by the United States Department of Labor. No Company Acquiror Employee Plan is covered by, and neither the Company Acquiror nor any Subsidiary of Acquiror or ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Acquiror Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer Acquiror, the Surviving Corporation and/or any Subsidiary of Acquiror (other than ordinary administrative expenses typically incurred in a termination event). With respect to each Acquiror Employee Plan subject to ERISA as either an employee pension benefit plan within the meaning of Section 3(2) of ERISA or an employee welfare benefit plan within the meaning of Section 3(1) of ERISA, Acquiror has prepared in good faith and timely filed all requisite governmental reports (which were true, correct and complete as of the date filed), including any required audit reports, and has properly and timely filed and distributed or posted all notices and reports to employees required to be filed, distributed or posted with respect to each such Acquiror Employee Plan. No suit, administrative proceeding, action, action or other litigation or claim has been brought, or to the knowledge of the CompanyAcquiror, is threatened, against or with respect to any such Company Acquiror Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) With respect to each Acquiror Employee Plan, each of Acquiror and each United States Subsidiary of Acquiror has complied with (i) the applicable health care continuation and notice provisions of COBRA or similar state law and the regulations (including proposed regulations) thereunder, (ii) the applicable requirements of the Family Medical and Leave Act of 1993 and the regulations (including proposed regulations) thereunder, (iii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations (including proposed regulations) thereunder, (iv) the applicable requirements of the Americans with Disabilities Act of 1990, as amended and the regulations (including proposed regulations) thereunder, (v) the Age Discrimination in Employment Act of 1967, as amended, and (vi) the applicable requirements of the Women’s Health and Cancer Rights Act of 1998 and the regulations (including proposed regulations) thereunder. Table of Contents
(e) There has been no amendment to, written interpretation or announcement (whether or not written) by Acquiror, any Subsidiary of Acquiror or other ERISA Affiliate relating to, or change in participation or coverage under, any Acquiror Employee Plan which would materially increase the expense of maintaining such Acquiror Employee Plan above the level of expense incurred with respect to such Acquiror Employee Plan for the most recent fiscal year included in the Financial Statements. No Acquiror Employee Plan will be subject to any surrender fees or service fees upon termination other than the normal and reasonable administrative fees associated with the termination of benefit plans.
(f) Neither the Company Acquiror nor any Subsidiary of Acquiror or current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(eg) Neither the Company Acquiror nor any Subsidiary of Acquiror or ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code.
(fh) No Company Employee Plan is sponsored, Each compensation and benefit plan maintained or contributed to by Acquiror or any Subsidiary of Acquiror under the law or applicable custom or rule of the any relevant jurisdiction outside of the United States.
States (geach such plan, a “Foreign Plan”) The Company is listed in Schedule 3.16(h) of the Acquiror Schedule of Exceptions. As regards each Foreign Plan, (i) such Foreign Plan is in material compliance with the provisions of the Legal Requirements of each jurisdiction in which such Foreign Plan is maintained, to the extent those Legal Requirements are applicable to such Foreign Plan, (ii) all contributions to, and material payments from, such Foreign Plan which may have been required to be made in accordance with the terms of such Foreign Plan, and, when applicable, the Legal Requirements of the jurisdiction in which such Foreign Plan is maintained, have been timely made or shall be made by the Closing Date, and all such contributions to such Foreign Plan, and all payments under such Foreign Plan, for any period ending before the Closing Date that are not yet, but will be, required to be made, are reflected as an accrued liability on the Acquiror Balance Sheet, (iii) Acquiror, each Subsidiary of Acquiror, and each ERISA Affiliate has materially complied with all applicable reporting and notice requirements, and such Foreign Plan has obtained from the Governmental Entity having jurisdiction with respect to such Foreign Plan any required determinations, if any, that such Foreign Plan is in compliance with the Legal Requirements of the relevant jurisdiction if such determinations are required in order to give effect to such Foreign Plan, (iv) such Foreign Plan has been administered in all material respects at all times in accordance with all currently its terms and applicable Legal Requirements respecting employmentRequirements, discrimination in employment(v) to the knowledge of Acquiror, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Actthere are no pending investigations by any governmental body involving such Foreign Plan, and is not engaged in any unfair labor practice. The Company is not liable no pending claims (except for any arrears of wages, compensation, Taxes, penalties or other sums claims for failure to comply with any of the foregoing. The Company has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made payable in the normal course operation of business and consistently with past practicesuch Foreign Plan).
, suits or proceedings against such Foreign Plan or asserting any rights or claims to benefits under such Foreign Plan, (hvi) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will not by itself create or otherwise result in any Liability with respect to such Foreign Plan, and (vii) except as required by applicable Legal Requirements, no condition exists that would prevent Acquiror or any of its Subsidiaries from terminating or amending any Foreign Plan at any time for any reason in accordance with the terms of each such Foreign Plan without the payment of any fees, costs or expenses (other than the payment of benefits accrued on the Acquiror Balance Sheet and any normal and reasonable expenses typically incurred in a termination event). The benefits available under all Foreign Plans in the aggregate do not provide materially greater benefits to employees of employment or service Acquiror or any other event Subsidiary of Acquiror participating in connection therewith such plans than the benefits available under the Acquiror Employee Plans for employees of Acquiror or subsequent thereto will, individually any Subsidiary of Acquiror in the United States. No Foreign Plan has unfunded Liabilities that will not be offset by insurance or together or with that are not fully accrued on the occurrence financial statements of some other event, (whether contingent or otherwise), Acquiror.
(i) result in Schedule 3.16(i) of the Acquiror Schedule of Exceptions lists as of the Agreement Date each employee of Acquiror or any material payment Subsidiary of Acquiror who is not fully available to perform work because of disability or benefit (including severanceother leave and also lists, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required with respect to be provided, to any current or former each such employee, director, independent contractor the basis of such disability or consultant, (ii) materially increase leave and the amount or value anticipated date of any benefit or compensation otherwise payable or required return to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Personfull service.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Force10 Networks Inc)
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a2.13(a) of the Company Disclosure Letter lists, as of the Agreement Date, with respect to the Company and or any trade or business (whether or not incorporated) which is treated as a single employer with the Company (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, Subsidiary (i) all “material employee benefit plans” plans (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), (ii) each loan to an employee, (iii) other than the Company Option Plan, all material stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iviii) all material written bonus, pension, profit sharing, savings, severanceseverance in an amount exceeding $200,000, retirement, or deferred compensation plans or programs, or other material written incentive plansplans or programs, programs or arrangementsin all cases, that are applicable to more than one (1) employee, (viv) all other material fringe or employee benefit plans, programs or arrangementsarrangements that apply to senior management and that do not generally apply to all employees, and (viv) all any material employment or executive service agreements (except for offer letters providing for at-will employment that do not provide for severance, acceleration or post-termination benefits) compensation agreements, change in control agreements or severance agreements, written or otherwise, as to which any unsatisfied obligations of the Company remain for the benefit of, or relating to, any present or former employeedirector, officer, employee or consultant or non-employee director (provided that, for former directors, officers, employees and consultants, such agreements need only be listed if unsatisfied obligations of the Company or any Subsidiary of greater than $10,000 remain thereunder) and (vi) any other material written or oral arrangement for the benefit of any employee under which the Company or any Subsidiary has or may have material liability, contingent or otherwise (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Employee Plans”).
(b) The Company has made available to Acquirer’s counsel Parent a true, correct and complete copy of each of the current Company Employee Plans and, as applicable, related material plan documents (including material trust documents, insurance policies or Contracts, employee booklets, registration statements, prospectuses and related summary plan documentsdescriptions and other authorizing documents and any material employee communications relating thereto) and, with respect to each such Company Employee Plan that is subject to ERISA reporting requirements, has made available to Parent true, correct and complete copies of the Form 5500 reports filed for the last three plan years. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code or has applied (or has time remaining in which to apply) to the Internal Revenue Service for such a determination letter prior to the expiration of the requisite period under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination or has been established under a standardized prototype plan for which an Internal Revenue Service opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer. The Company does not sponsor has made available to Parent a true, correct and complete copy of the most recent Internal Revenue Service determination or maintain any self-funded opinion letter issued with respect to each such Company Employee Plan, including, without limitation, any plan to which a stop-loss policy applies.
(c) None Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and the Subsidiaries, taken as a whole, none of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) ), or similar state law law. Except as would not, individually or in the aggregate, result in material liability to the Company and the Company has complied with the requirements of COBRA. There has been no “prohibited transaction” Subsidiaries, taken as a whole, (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunderi) with respect to any Company Employee Plan. Each each Company Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations Applicable Legal Requirements (including ERISA and the Code), ) and (ii) the Company and each ERISA Affiliate Subsidiary has performed all obligations required to be performed by it under, and is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Company Employee Plans. No Except as would not, individually or in the aggregate, reasonably be expected to result in material liability to the Company and the Subsidiaries, taken as a whole, all contributions required to be made by the Company or any Subsidiary to any Company Employee Plan is covered by, and neither the Company nor ERISA Affiliate have been made and/or a reasonable amount has incurred or expects been accrued for contributions to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer (other than ordinary administrative expenses typically incurred in a termination event)Plan. No suit, administrative proceeding, action, litigation or claim Legal Proceeding has been brought, or to the knowledge of the Company, is threatened, against or with respect to any such Company Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor, that, in each case, would result in material liability to the Company and the Subsidiaries, taken as a whole.
(d) Neither the Company nor current or former ERISA Affiliate any Subsidiary currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, in or contributed to, in each case within the past six years, any “pension plan plan” (within the meaning of Section 3(2) of ERISA) which that is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(e) Neither the Company nor ERISA Affiliate any Subsidiary is a party to, or has made any contribution within the past six years to or otherwise incurred any obligation within the past six years under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code.
(f) No Each Company Employee Plan is sponsored, maintained or contributed to by the Company or any Subsidiary under the law or applicable custom or rule Applicable Legal Requirements of the any relevant jurisdiction outside of the United StatesStates (each such plan, a “Foreign Plan”) is set forth in Schedule 2.13(a) of the Company Disclosure Letter. With respect to each Foreign Plan, except as would not, individually or in the aggregate, reasonably be expected to result in material liability to the Company and the Subsidiaries, taken as a whole (i) such Foreign Plan is in material compliance with the provisions of the Applicable Legal Requirements of each jurisdiction in which such Foreign Plan is maintained, to the extent those Applicable Legal Requirements are applicable to such Foreign Plan, (ii) all contributions to, and material payments from, such Foreign Plan that were required to be made in accordance with the terms of such Foreign Plan, and, when applicable, the Applicable Legal Requirements of the jurisdiction in which such Foreign Plan is maintained, were made or shall be made by the Closing Date, and all such contributions to such Foreign Plan, and all payments under such Foreign Plan, for any period ending before the Closing Date that are not yet, but will be, required to be made, are reflected as an accrued liability on the Company Balance Sheet where required to be so reflected by GAAP, (iii) the consummation of the Merger and the other Transactions will not by itself create or otherwise result in any material Liability with respect to such Foreign Plan and (iv) except as required by Applicable Legal Requirements, no condition exists that would prevent the Company or any of the Subsidiaries from terminating or amending any Foreign Plan at any time for any reason in accordance with the terms of each such Foreign Plan without the payment of any fees, costs or expenses or the incurrence of any Liability (other than the payment of benefits accrued on the Company Balance Sheet and any normal and reasonable expenses typically incurred in a termination event).
(g) The None of the execution and delivery of this Agreement, the consummation of the Merger or any other transaction contemplated by this Agreement or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (i) result in any payment (including severance, golden parachute, bonus or otherwise) becoming due to any Person, (ii) materially increase or otherwise enhance any benefits otherwise payable by the Company or any Subsidiary, (iii) result in the acceleration of the time of payment or vesting of any such benefits, except as required under Section 411(d)(3) of the Code, (iv) materially increase the amount of compensation due to any Person or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company or any Subsidiary to any Person.
(h) Except as would not, in individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and each Subsidiary is in compliance in all material respects with all currently applicable Applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice. The Aside from any amounts due in the current payroll or invoice cycle and obligations that are not material in amount, the Company is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Company and each Subsidiary has paid in full to all employees, independent contractors and consultants all earned wages, salaries, commissions, bonuses, benefits and other compensation currently due to or on behalf of such employees, independent contractors and consultants. The Neither the Company is not liable nor any Subsidiary has any material unpaid liability for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal ordinary course of business and consistently consistent with past practice). To the knowledge of the Company, there are no pending claims against the Company and/or any Subsidiary under any workers compensation plan or policy or for long term disability. Neither the Company nor any Subsidiary has any obligations under COBRA with respect to any former employees or qualifying beneficiaries thereunder, except for obligations that are not material in amount. There are no controversies pending or, to the knowledge of the Company, threatened, between the Company or any Subsidiary and any of their respective current or former employees, which material controversies have or would reasonably be expected to result in a Legal Proceeding before any Governmental Entity.
(hi) Schedule 2.13(i) of the Company Disclosure Letter sets forth a true, correct and complete list, as of the Agreement Date, of all Contracts that provide for severance payments or severance benefits upon termination of employment, where the aggregate amount of such payments of benefits exceeds $150,000 to which the Company and/or any Subsidiary is a party or by which the Company and/or any Subsidiary is bound and the terms of which either (i) materially deviate from the terms set forth in the applicable forms made available to Parent or (ii) requires notice in advance of, or would result in material Liability upon, termination of such Contract (other than pursuant to Applicable Legal Requirements). Neither Company nor any Subsidiary has any obligation to pay any material amount or provide any material benefit to any former employee or officer, other than obligations (A) for which Company has established a reserve for such amount on the Company Balance Sheet, to the extent required by GAAP, or (B) pursuant to Contracts entered into after the Company Balance Sheet Date and disclosed on Schedule 2.13(i) of the Company Disclosure Letter.
(j) Neither the execution Company nor any Subsidiary is a party to or delivery of this Agreement nor bound by any collective bargaining agreement or other labor union Contract, no collective bargaining agreement is being negotiated by the consummation of the transactions contemplated by this Agreement Company or any termination of employment or service Subsidiary, and neither the Company nor any Subsidiary has any duty to bargain with any labor organization. There is no pending demand for recognition or any other event request or demand from a labor organization for representative status with respect to any Person employed by the Company or any Subsidiary. To the knowledge of the Company, there are no activities or proceedings of any labor union or to organize the employees of the Company or any of the Subsidiaries. There is no labor dispute, strike or work stoppage against the Company or any Subsidiary pending or, to the knowledge of the Company, threatened that may interfere with the respective business activities of the Company or any Subsidiary. Neither the Company nor any Subsidiary, nor to the knowledge of the Company, any of their respective Representatives, has committed any unfair labor practice in connection therewith or subsequent thereto will, individually or together or with the occurrence operation of some the Business, and there is no charge or complaint against the Company or any Subsidiary by the National Labor Relations Board or any comparable Governmental Entity pending or to the knowledge of the Company, threatened.
(k) On or prior to the Agreement Date, each of the Company and each Subsidiary has made available to Parent a true, correct and complete list of all of its current consultants, advisory board members and independent contractors (other eventthan contractors who are provided with less than $300,000 of compensation annually for the services provided).
(l) The employment of each of the employees of the Company or any Subsidiary is “at will” (except for non-U.S. employees of the Company or any Subsidiary located in a jurisdiction that does not recognize the “at will” employment concept) and neither the Company nor any Subsidiary has any obligation to provide any particular form or period of notice prior to terminating the employment of any of their respective employees, except for any particular form or period of notice required by Applicable Legal Requirements or as set forth in employment agreements with non-U.S. employees of the Company and the Subsidiaries.
(whether contingent m) The Company and each Subsidiary is in compliance, and, for the past two years has complied, in all material respects with the Worker Adjustment Retraining Notification Act of 1988, as amended (“WARN Act”), or otherwise)any similar state or local Applicable Legal Requirements. In the past two years, (i) result the Company has not effectuated a “plant closing” (as defined in the WARN Act) affecting any material payment site of employment or benefit (including severance, unemployment compensation, golden parachute, bonus one or otherwise) becoming due more facilities or payable, operating units within any site of employment or required to be provided, to any current or former employee, director, independent contractor or consultantfacility of its business, (ii) materially increase there has not occurred a “mass layoff” (as defined in the amount WARN Act) affecting any site of employment or value facility of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, the Company and (iii) result the Company has not been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any similar state, local or foreign Applicable Legal Requirements. Neither the Company nor any Subsidiary has caused any of its respective employees to suffer an “employment loss” (as defined in the acceleration of WARN Act) during the time of payment, vesting or funding of any such benefit or compensation, (iv) increase 90-day period ending on the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any PersonAgreement Date.
Appears in 1 contract
Samples: Merger Agreement (Broadsoft, Inc.)
Employee Benefit Plans and Employee Matters. (a) Schedule 2.11(a2.16(a) of the Company Disclosure Letter Target Schedule of Exceptions lists, with respect to the Company Target, any Subsidiary of Target and any trade or business (whether or not incorporated) which is treated as a single employer with the Company Target (an “ERISA Affiliate”) within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) each outstanding loan to an employeeemployee in excess of $10,000, (iii) other than the Company Option Plan, all stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iv) all bonus, pension, profit sharing, savings, severance, retirement, deferred compensation or incentive plans, programs or arrangements, (v) all other fringe or employee benefit plans, programs or arrangementsarrangements that apply to senior management and that do not generally apply to all employees, and (vi) all employment or executive compensation or severance Table of Contents agreements, written or otherwise, as to which any unsatisfied obligations of the Company Target or any Subsidiary of Target of greater than $10,000 remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company Target or any Subsidiary of Target (all of the foregoing described in clauses (i) through (vi), collectively, the “Company Target Employee Plans”).
(b) The Company Target has made available furnished to AcquirerAcquiror’s counsel a true, correct and complete copy of each of the Company Target Employee Plans and related plan documents (including trust documents, insurance policies or Contracts, employee booklets, summary plan descriptions and other authorizing documents, and any material employee communications relating thereto) and has, with respect to each Target Employee Plan which is subject to ERISA reporting requirements, delivered to Acquiror’s counsel true, correct and complete copies of the Form 5500 reports filed for the last three plan years. The Company does Any Target Employee Plan intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code, including all amendments to the Code effected by the Tax Reform Act of 1986 and subsequent legislation, or has applied (or has time remaining in which to apply) to the Internal Revenue Service for such a determination letter prior to the expiration of the requisite period under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination or has been established under a standardized prototype plan for which an Internal Revenue Service opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer. Target has also delivered to Acquiror a true, correct and complete copy of the most recent Internal Revenue Service determination or opinion letter issued with respect to each such Target Employee Plan, and nothing has occurred since the issuance of each such letter which would reasonably be expected to cause the loss of the Tax-qualified status of any Target Employee Plan subject to Section 401(a) of the Code. Target has also delivered to Acquiror all registration statements and prospectuses prepared in connection with each Target Employee Plan. No employee of Target or any Subsidiary of Target and no person subject to any health plan of Target or any Subsidiary of Target has made medical claims through any such health plan during the 12 months preceding the Agreement Date for more than $25,000 in the aggregate for which Target or such Subsidiary of Target is directly responsible. For the purposes of the forgoing sentence, any exception to such representation and warranty set forth in the Target Schedule of Exceptions shall be stated generally and shall not sponsor identify any employee of Target or maintain such Subsidiary of Target or person subject to any health plan of Target or such Subsidiary of Target who has made medical claims. Neither Target nor any Subsidiary of Target sponsors or maintains any self-funded Company Employee Plan, including, without limitation, any plan to which a stop-loss policy appliesemployee benefit plan.
(c) None of the Company Target Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or similar state law and the Company has complied with the requirements of COBRAlaw. There has been no “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the Code and not exempt under Section 408 of ERISA and regulatory guidance thereunder) with respect to any Company Target Employee Plan, which could reasonably be expected to result, individually or in the aggregate with any such other “prohibited transactions,” in a material Liability to Target or any of its Subsidiaries. Each Company Target Employee Plan has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), and the Company Target, each Subsidiary of Target and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in any material respect in default under or in violation of, and has no knowledge of any material default or violation by any other party to, any of the Company Target Employee Plans. Neither Target nor any Subsidiary of Target or ERISA Affiliate is subject to any Liability or penalty under Sections 4976 through 4980 of the Code or Title I of ERISA with respect to any of the Target Employee Plans. All contributions required to be made by Target, any Subsidiary of Target or any ERISA Affiliate to any Target Employee Plan have been made on or before their due dates and a reasonable amount has been accrued for contributions to each Target Employee Plan for the current plan years (and no further contributions will be due or will have accrued thereunder as of the Closing Date, other than contributions Table of Contents accrued in the ordinary course of business, consistent with past practice, after the Target Balance Sheet Date as a result of the operations of Target and its Subsidiaries after the Target Balance Sheet Date). In addition, with respect to each Target Employee Plan intended to include a Code Section 401(k) arrangement, Target, its Subsidiaries and ERISA Affiliates have at all times made timely deposits of employee salary reduction contributions and participant loan repayments, as determined pursuant to regulations issued by the United States Department of Labor. No Company Target Employee Plan is covered by, and neither the Company Target nor any Subsidiary of Target or ERISA Affiliate has incurred or expects to incur any Liability under Title IV of ERISA or Section 412 of the Code. Each Company Target Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without Liability to Acquirer Acquiror, the Surviving Corporation and/or any Subsidiary of Target (other than ordinary administrative expenses typically incurred in a termination event). With respect to each Target Employee Plan subject to ERISA as either an employee pension benefit plan within the meaning of Section 3(2) of ERISA or an employee welfare benefit plan within the meaning of Section 3(1) of ERISA, Target has prepared in good faith and timely filed all requisite governmental reports (which were true, correct and complete as of the date filed), including any required audit reports, and has properly and timely filed and distributed or posted all notices and reports to employees required to be filed, distributed or posted with respect to each such Target Employee Plan. No suit, administrative proceeding, action, action or other litigation or claim has been brought, or to the knowledge of the CompanyTarget, is threatened, against or with respect to any such Company Target Employee Plan, including any audit or inquiry by the Internal Revenue Service or United States Department of Labor.
(d) With respect to each Target Employee Plan, each of Target and each United States Subsidiary of Target has complied with (i) the applicable health care continuation and notice provisions of COBRA or similar state law and the regulations (including proposed regulations) thereunder, (ii) the applicable requirements of the Family Medical and Leave Act of 1993 and the regulations (including proposed regulations) thereunder, (iii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations (including proposed regulations) thereunder, (iv) the applicable requirements of the Americans with Disabilities Act of 1990, as amended and the regulations (including proposed regulations) thereunder, (v) the Age Discrimination in Employment Act of 1967, as amended, and (vi) the applicable requirements of the Women’s Health and Cancer Rights Act of 1998 and the regulations (including proposed regulations) thereunder.
(e) There has been no amendment to, written interpretation or announcement (whether or not written) by Target, any Subsidiary of Target or other ERISA Affiliate relating to, or change in participation or coverage under, any Target Employee Plan which would materially increase the expense of maintaining such Target Employee Plan above the level of expense incurred with respect to such Target Employee Plan for the most recent fiscal year included in the Financial Statements. No Target Employee Plan will be subject to any surrender fees or service fees upon termination other than the normal and reasonable administrative fees associated with the termination of benefit plans.
(f) Neither the Company Target nor any Subsidiary of Target or current or former ERISA Affiliate currently maintains, sponsors, participates in or contributes to, or has ever maintained, established, sponsored, participated in, or contributed to, any pension plan (within the meaning of Section 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(eg) Neither the Company Target nor any Subsidiary of Target or ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any “multiemployer plan” as such term is defined in Section 3(37) of ERISA or any “multiple employer plan” as such term is defined in Section 413(c) of the Code.
(f) No Company Employee Plan is sponsored, maintained or contributed to under the law or applicable custom or rule of the any jurisdiction outside of the United States.
(g) The Company is in compliance in all material respects with all currently applicable Legal Requirements respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act, and is not engaged in any unfair labor practice. The Company is not liable for any arrears of wages, compensation, Taxes, penalties or other sums for failure to comply with any of the foregoing. The Company has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees, independent contractors and consultants. The Company is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice).
(h) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement or any termination of employment or service or any other event in connection therewith or subsequent thereto will, individually or together or with the occurrence of some other event, (whether contingent or otherwise), (i) result in any material payment or benefit (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due or payable, or required to be provided, to any current or former employee, director, independent contractor or consultant, (ii) materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Person.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Force10 Networks Inc)
