Employee Benefit Plans and Labor Matters. (a) Section 2.21(a) of the Company Disclosure Schedule contains a correct and complete list identifying each “employee benefit plan,” as defined in Section 3(3) of ERISA (whether or not subject to ERISA), each employment, consultancy, non-compete, severance, change of control, or similar agreement, Contract, plan, arrangement or policy and each other Contract, plan, arrangement or policy providing for compensation, bonuses, profit-sharing, stock purchase, stock option or other stock-related rights or other forms of incentive or deferred compensation, fringe benefits, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits and any summary plan descriptions) which covers any current employee or former employee, director or consultant of the Company or its subsidiaries or its ERISA Affiliates or any of their dependents, with respect to which the Company or any of its ERISA Affiliates has any material liability, whether current or contingent (individually, a “Company Employee Plan” and collectively, the “Company Employee Plans”). A copy of each such Company Employee Plan (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto or a description of each Company Employee Plan that is unwritten, has been made available to Parent together with the most recent annual report (Form 5500 including, where applicable, all schedules and actuarial and accountants’ reports) and Tax Return (Form 990) prepared in connection with any such plan or trust. (b) No Company Employee Plan is subject to Title IV of ERISA or Section 412 of the Code. (c) No Company Employee Plan is a multiemployer plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”), or a multiple employer welfare arrangement as defined in Section 3(40) of ERISA (a “MEWA”) or a multiple employer plan as defined in Section 413(c) of the Code. Neither the Company, any if its subsidiaries nor any of their ERISA Affiliates has (i) ever been obligated to contribute to a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA); or (ii) to the knowledge of the Company, ever maintained a Company Employee Plan which was ever subject to the laws of any jurisdiction outside of the United States. (d) Except as has not and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code (each, a “Company Qualified Plan”) is so qualified and the plan as currently in effect has received a favorable determination letter to that effect from the Internal Revenue Service, no such determination letter has been revoked and revocation has not been threatened, and to the Company’s knowledge, there is no reason why any such determination letter should be revoked or not be reissued. The Company has made available to Parent copies of the most recent Internal Revenue Service determination letters with respect to each such Company Qualified Plan. Each Company Employee Plan has been maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Company Employee Plan with such exceptions as would not have or be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect on the Company. Each Company Employee Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in good faith compliance in all material respects with Section 409A of the Code and the regulations, guidance and notices issued thereunder. The Company has complied in all material respects with the reporting and wage withholding requirements under Section 409A of the Code and applicable IRS guidance. No events have occurred with respect to any Company Employee Plan that could result in payment or assessment by or against the Company or any of its ERISA Affiliates of any excise Taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code or any penalty or tax under Section 5.02(i) of ERISA except for any such payment or assessment as would not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect on the Company. (e) There is no current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits or other retiree benefits for any person, retired, former or current employees of the Company or its subsidiaries, except as required by Applicable Law or under Section 4980B of the Code (“COBRA”). No condition exists that would prevent the Company or any of its ERISA Affiliates from amending or terminating any Company Employee Plan providing health or medical benefits in respect of any current or former employees of the Company or its subsidiaries. None of the Company, any if its subsidiaries, or any Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person, except as required by Applicable Law and there has been no communication to current or former employees by the Company or any of its subsidiaries which could reasonably be interpreted to promise or guarantee such employees retiree health or life insurance or other retiree death benefits on a permanent basis. (f) All contributions and payments due under each Company Employee Plan, determined in accordance with GAAP, as adjusted to include proportional accruals for the period ending on the Effective Time, will be discharged and paid on or prior to the Effective Time except to the extent accrued as a liability in accordance with ordinary Company practice. There has been no amendment to, written interpretation of or announcement (whether or not written) by the Company or any of its ERISA Affiliates relating to, or change in employee participation or coverage under, any Company Employee Plan which would increase materially the expense of maintaining such Company Employee Plan above the level of the expense incurred in respect thereof for the most recent fiscal year ended prior to the date hereof. With respect to each Company Employee Plan, there are no benefit obligations for which contributions have not been made or properly accrued to the extent required by GAAP on the Company’s financial statements. The assets of each Company Employee Plan which is funded are reported at their fair market value on the books and records of such Company Employee Plan and, if applicable, the Company’s financial statements. (g) No employee or former employee of the Company or any of its subsidiaries will become entitled to any bonus, retirement, severance, job security or similar benefit, or the enhancement of any such benefit, as a result of the transactions contemplated hereby alone or together with any other event. Except as set forth on Section 2.21(g)(i) of the Company Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event) result in, or cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit to any employee, officer or director of the Company or any of its subsidiaries, or could limit the right of the Company or any of its subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Employee Plan or related trust. There is no Contract, plan or arrangement (written or otherwise) covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Sections 280G or 162(m) of the Code, as a result of the transactions contemplated hereby alone or together with any other event. The information set forth on Section 2.21(g)(ii) of the Company Disclosure Schedule regarding severance arrangements for certain executive officers and certain other executives of the Company is true and correct in all material respects as of October 25, 2007. (h) No “prohibited transactions” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, that are not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. There is no material action, suit, investigation, audit, arbitration or proceeding (i) pending against or involving or, to the knowledge of the Company, threatened against any Company Employee Plan or (ii) involving the Company’s classification of individuals as either employees or independent contractors, in each case, before any arbitrator or any Governmental Entity. (i) There is no material action, suit, investigation, audit, arbitration or proceeding (i) pending against or involving or, to the knowledge of the Company, threatened against any Company Employee Plan, (ii) pending or, to the knowledge of the Company, threatened involving the Company’s or any of its subsidiaries’ classification of individuals as either employees or independent contractors, (iii) pending or, to the knowledge of the Company, threatened involving the Company’s or any of its subsidiaries’ classification of Employees as exempt or non-exempt for purposes of wage and hour laws, rules or regulations, or (iv) pending or, to the knowledge of the Company, threatened under any workers compensation policy or long-term disability policy, in each case, before or by any arbitrator or any Governmental Entity other than routine claims for benefits payable under any such policy. (j) Neither the Company nor any of its subsidiaries is a party to or subject to or otherwise bound by, or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract or understanding with a labor union or organization nor has any labor organization or group of employees of the Company and its subsidiaries made a pending demand for recognition or certification, and, to the knowledge of the Company, there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority seeking to compel it to bargain with any labor union or labor organization. Neither the Company nor any of its subsidiaries is the subject of any material proceeding, action, claim, grievance, audit or investigation (by or before any arbitrator or any Governmental Entity) and, to the knowledge of the Company, no such material proceeding, action, claim, grievance, audit or investigation is threatened, asserting that the Company or any of its subsidiaries has violated any wage-hour law, rule or regulation, any law, rule or regulation regarding employment discrimination, harassment, retaliation or fair employment practices, any law, rule or regulation regarding workers compensation, payroll and employment related taxes and withholdings, or unemployment insurance, or committed an unfair labor practice or seeking to compel the Company or any of its subsidiaries to bargain with any labor union or labor organization nor is there pending or, to the knowledge of the Company, threatened, nor has there been for the past five (5) years, any labor strike, dispute, walk-out, work stoppage, slow-down or lockout, material arbitrations or material grievances, involving the Company or any of its subsidiaries. To the knowledge of the Company, as of the date hereof, there are no campaigns being conducted to solicit cards from the Company employees to authorize (or to express an interest in authorizing) representation by a labor organization or other proposed bargaining unit representative. (k) Except as to noncompliance that would not have or reasonably be expected to have a Material Adverse Effect on the Company or any of its subsidiaries, each of the Company and its subsidiaries is in compliance with all Applicable Laws, agreements and Employee Plans respecting employment and employment practices, terms and conditions of employment, wages and hours, payroll and employment related taxes, social security, unemployment insurance, workers compensation, and other required withholdings from wages, salaries and other payments to Employees, employee benefits, immigration (including, without limitation, federal, state and local laws and regulations relating to the status, employment and eligibility of employment of all Employees, including without limitation the Immigration Reform Control Act and all rules and regulations of the Bureau of Citizenship and Immigration Services of the U.S. Department of Homeland Security (previously the U.S. Immigration and Naturalization Service)), occupational safety and health, and mass layoffs and plant closings (including, without limitation, the Worker Adjustment and Retraining Notification Act and all similar state and local laws). Neither the Company nor any of its subsidiaries has any employment contracts or, employee agreements, currently in effect that are not terminable at will (other than agreements for the sole purpose of providing for the confidentiality of proprietary information or, assignment of inventions), except as set forth on Sections 2.16(a)(i), 2.21(a), 2.21(g) and 2.24 of the Company Disclosure Schedule.
Appears in 2 contracts
Samples: Merger Agreement (Matria Healthcare Inc), Merger Agreement (Inverness Medical Innovations Inc)
Employee Benefit Plans and Labor Matters. (a) Section 2.21(aSchedule 4.18(a) of the Company Disclosure Schedule contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) of ERISA (whether or not subject to ERISA), each material employment, consultancy, non-compete, severance, change of control, severance or similar agreement, Contractcontract, plan, arrangement or policy and each other Contract, plan, material plan or arrangement (written or policy oral) providing for compensation, bonuses, profit-sharing, stock purchase, stock option or other stock-stock related rights or other forms of incentive or deferred compensation, fringe benefits, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits and any summary plan descriptionsbenefits) which is maintained, administered or contributed to by the Company or any ERISA Affiliate and covers any current employee or former employee, director director, officer or consultant independent contractor or former employee of the Company or its subsidiaries or its ERISA Affiliates or any of their dependentsits Subsidiaries, or with respect to which the Company or any of its ERISA Affiliates Subsidiaries has any material liability, whether current or contingent (individually, a “Company Employee Plan” and collectively, the “Company Employee Plans”). A copy Copies of each such Company Employee Plan those plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto or a description of each Company Employee Plan that is unwritten, has and written interpretations thereof have been made available to Parent together with the most recent annual report (Form 5500 including, where if applicable, all schedules and actuarial and accountants’ reports) and Tax Return (Form 990Schedule B thereto) prepared in connection with any such plan or trust. Those plans are referred to collectively in this Agreement as the “Employee Plans”.
(b) No Neither the Company nor any ERISA Affiliate nor to the Knowledge of the Company any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Employee Plan is subject to Title IV of ERISA with such exceptions as would not be reasonably expected to have any material liability for the Company, the Surviving Corporation or Section 412 of the Codetheir respective Affiliates.
(c) No Neither the Company Employee Plan is a nor any ERISA Affiliate nor any predecessor thereof contributes to, or has in the past contributed to, any multiemployer plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”), or a multiple employer welfare arrangement as defined in Section 3(40) of ERISA (a “MEWA”) or a multiple employer plan as defined in Section 413(c) of the Code. Neither the Company, any if its subsidiaries nor any of their ERISA Affiliates has (i) ever been obligated to contribute to a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA); or (ii) to the knowledge of the Company, ever maintained a Company Employee Plan which was ever subject to the laws of any jurisdiction outside of the United States.
(d) Except as has not and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, each Company Each Employee Plan that which is intended to be qualified under Section 401(a) of the Code (each, a “Company Qualified Plan”) is so qualified and the plan as currently in effect has received a favorable determination letter letter, or has pending or has time remaining in which to file, an application for that effect determination from the Internal Revenue Service, no such determination letter has been revoked and revocation has the Company is not been threatened, and to the Company’s knowledge, there is no aware of any reason why any such determination letter should be revoked or not be reissued. The Company has made available to Parent copies of the most recent Internal Revenue Service determination letters with respect to each such Company Qualified Employee Plan. Each Company Employee Plan has been maintained in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Company that Employee Plan with such exceptions as would not have or be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect on any material liability for the Company. Each Company Employee Plan that is a “nonqualified deferred compensation plan” within , the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in good faith compliance in all material respects with Section 409A of the Code and the regulations, guidance and notices issued thereunder. The Company has complied in all material respects with the reporting and wage withholding requirements under Section 409A of the Code and applicable IRS guidanceSurviving Corporation or their respective Affiliates. No material events have occurred with respect to any Company Employee Plan that could result in payment or assessment by or against the Company or any of its ERISA Affiliates of any material excise Taxes taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code or any penalty or tax under Section 5.02(i) of ERISA except for any with such payment or assessment exceptions as would not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect on any material liability for the Company, the Surviving Corporation or their respective Affiliates.
(e) There is no current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits or other retiree benefits for any person, retired, former or current employees The consummation of the Company transactions contemplated by this Agreement will not (either alone or its subsidiariestogether with any other event) entitle any director, except as required by Applicable Law or under Section 4980B of the Code (“COBRA”). No condition exists that would prevent the Company or any of its ERISA Affiliates from amending or terminating any Company Employee Plan providing health or medical benefits in respect of any current or former employees of the Company or its subsidiaries. None of the Companyofficer, any if its subsidiaries, or any Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person, except as required by Applicable Law and there has been no communication to current or former employees by the Company or any of its subsidiaries which could reasonably be interpreted to promise or guarantee such employees retiree health or life insurance or other retiree death benefits on a permanent basis.
(f) All contributions and payments due under each Company Employee Plan, determined in accordance with GAAP, as adjusted to include proportional accruals for the period ending on the Effective Time, will be discharged and paid on or prior to the Effective Time except to the extent accrued as a liability in accordance with ordinary Company practice. There has been no amendment to, written interpretation of or announcement (whether or not written) by the Company or any of its ERISA Affiliates relating to, or change in employee participation or coverage under, any Company Employee Plan which would increase materially the expense of maintaining such Company Employee Plan above the level of the expense incurred in respect thereof for the most recent fiscal year ended prior to the date hereof. With respect to each Company Employee Plan, there are no benefit obligations for which contributions have not been made or properly accrued to the extent required by GAAP on the Company’s financial statements. The assets of each Company Employee Plan which is funded are reported at their fair market value on the books and records of such Company Employee Plan and, if applicable, the Company’s financial statements.
(g) No employee or former employee independent contractor of the Company or any of its subsidiaries will become entitled Subsidiaries to severance pay or accelerate the time of payment or vesting or trigger any bonus, retirement, severance, job security payment of funding (through a grantor trust or similar benefit, or the enhancement of any such benefit, as a result of the transactions contemplated hereby alone or together with any other event. Except as set forth on Section 2.21(g)(iotherwise) of the Company Disclosure Schedulecompensation or benefits under, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event) result in, or cause the accelerated vesting, funding or delivery of, or increase the amount payable or value oftrigger any other material obligation pursuant to, any payment or benefit to any employee, officer or director of the Company or any of its subsidiaries, or could limit the right of the Company or any of its subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Employee Plan or related trustPlan. There is no Contractcontract, plan or arrangement (written or otherwise) covering any employee or former employee of the Company or any of its subsidiaries Subsidiaries that, individually or collectively, would entitle any employee or former employee to any severance or other payment solely as a result of the transactions contemplated hereby, or could give rise to the payment of any amount that would not be deductible pursuant to the terms of Sections Section 280G or 162(m) of the Code. Schedule 4.18(e) sets forth, as a result opposite the name of each person listed in that schedule, the maximum bonus payment to which that person may be entitled in respect of the transactions contemplated hereby alone or together with Company’s fiscal year ending May 31, 2004 under the Company’s CEO Bonus Plan, 2004 Bonus Plan, Long-Term Executive Bonus Plan and any other event. The information set forth on Section 2.21(g)(iibonus plan or arrangement.
(f) Neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company Disclosure Schedule regarding severance arrangements for certain executive officers and certain other executives or its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code or as may be required under other applicable law.
(g) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company is true and correct or any of its Affiliates relating to, or change in all material respects as employee participation or coverage under, an Employee Plan which would increase materially the expense of October 25maintaining that Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended May 31, 20072003.
(h) No “prohibited transactions” within All contributions and payments accrued under each Employee Plan, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the meaning of Section 4975 period ending as of the Code date of this Agreement, have been discharged, paid or Sections 406 and 407 of ERISA, that are not otherwise exempt under Section 408 of ERISA, has occurred accrued in accordance with respect to any ordinary Company Employee Plan. practice.
(i) There is no material action, suit, investigation, audit, arbitration audit or proceeding (i) pending against or involving or, to the knowledge Knowledge of the Company, threatened against or involving, any Company Employee Plan or (ii) involving the Company’s classification of individuals as either employees or independent contractors, in each case, before any court or arbitrator or any Governmental Entity.
(i) There is no material actionstate, suitfederal or local governmental body, investigationagency or official with such exceptions as would not be reasonably expected, audit, arbitration individually or proceeding (i) pending against or involving orin the aggregate, to the knowledge of have any material liability for the Company, threatened against any Company Employee Plan, (ii) pending or, to the knowledge of the Company, threatened involving the Company’s Surviving Corporation or any of its subsidiaries’ classification of individuals as either employees or independent contractors, (iii) pending or, to the knowledge of the Company, threatened involving the Company’s or any of its subsidiaries’ classification of Employees as exempt or non-exempt for purposes of wage and hour laws, rules or regulations, or (iv) pending or, to the knowledge of the Company, threatened under any workers compensation policy or long-term disability policy, in each case, before or by any arbitrator or any Governmental Entity other than routine claims for benefits payable under any such policytheir respective Affiliates.
(j) The Company has no material Employee Plan that principally covers non-U.S. employees.
(k) Neither the Company nor any of its subsidiaries Subsidiaries is a party to or subject to or otherwise bound byto, or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract contract or understanding with a labor union or organization nor has any labor organization or group of employees nor, as of the Company and its subsidiaries made a pending demand for recognition or certificationdate hereof, and, to the knowledge of the Company, there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority seeking to compel it to bargain with any labor union or labor organization. Neither is the Company nor or any of its subsidiaries is Subsidiaries the subject of any material proceeding, action, claim, grievance, audit or investigation (by or before any arbitrator or any Governmental Entity) and, to the knowledge of the Company, no such material proceeding, action, claim, grievance, audit or investigation is threatened, proceeding asserting that the Company or any of its subsidiaries Subsidiaries has violated any wage-hour law, rule or regulation, any law, rule or regulation regarding employment discrimination, harassment, retaliation or fair employment practices, any law, rule or regulation regarding workers compensation, payroll and employment related taxes and withholdings, or unemployment insurance, or committed an unfair labor practice or seeking to compel the Company or any of its subsidiaries it to bargain with any labor union or labor organization nor is there pending or, to the knowledge Knowledge of the Company, threatened, nor has there been for the past five (5) years, any labor strike, material dispute, walk-out, work stoppage, slow-down or lockout, material arbitrations or material grievances, lockout involving the Company or any of its subsidiariesSubsidiaries. To the knowledge of the Company, as of the date hereof, there There are no campaigns being conducted to solicit cards from the Company employees to authorize (or to express an interest in authorizing) representation by a an labor organization or other proposed bargaining unit representative.
(kl) Except as to noncompliance that would not have Since January 1, 2000, neither the Company nor any of its Subsidiaries has closed any facility or reasonably be expected to have a Material Adverse Effect on work site used in the business of the Company or any of its subsidiariesSubsidiaries or effectuated any material employee layoffs or down-sizing or implemented any early retirement, each of the Company and its subsidiaries is in compliance with all Applicable Laws, agreements and Employee Plans respecting employment and employment practices, terms and conditions of employment, wages and hours, payroll and employment related taxes, social security, unemployment insurance, workers compensation, and other required withholdings from wages, salaries and other payments to Employees, employee benefits, immigration (including, without limitation, federal, state and local laws and regulations relating to the status, employment and eligibility of employment of all Employees, including without limitation the Immigration Reform Control separation or window program or announced any such action or program that has triggered any WARN Act and all rules and regulations of the Bureau of Citizenship and Immigration Services of the U.S. Department of Homeland Security (previously the U.S. Immigration and Naturalization Service)), occupational safety and health, and mass layoffs and plant closings (including, without limitation, the Worker Adjustment and Retraining Notification Act and all requirements or similar state and local or foreign labor laws). Neither the Company nor any of its subsidiaries has any employment contracts or, employee agreements, currently in effect that are not terminable at will (other than agreements for the sole purpose of providing for the confidentiality of proprietary information or, assignment of inventions), except as set forth on Sections 2.16(a)(i), 2.21(a), 2.21(g) and 2.24 of the Company Disclosure Schedule.
Appears in 1 contract
Samples: Merger Agreement (V F Corp)
Employee Benefit Plans and Labor Matters. (a) Section 2.21(aSchedule 4.18(a) of the Company Disclosure Schedule contains a correct and complete list identifying each “material "employee benefit plan,” " as defined in Section 3(3) of ERISA (whether or not subject to ERISA), each material employment, consultancy, non-compete, severance, change of control, severance or similar agreement, Contractcontract, plan, arrangement or policy and each other Contract, plan, material plan or arrangement (written or policy oral) providing for compensation, bonuses, profit-sharing, stock purchase, stock option or other stock-stock related rights or other forms of incentive or deferred compensation, fringe benefits, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ ' compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits and any summary plan descriptionsbenefits) which is maintained, administered or contributed to by the Company or any ERISA Affiliate and covers any current employee or former employee, director director, officer or consultant independent contractor or former employee of the Company or its subsidiaries or its ERISA Affiliates or any of their dependentsits Subsidiaries, or with respect to which the Company or any of its ERISA Affiliates Subsidiaries has any material liability, whether current or contingent (individually, a “Company Employee Plan” and collectively, the “Company Employee Plans”). A copy Copies of each such Company Employee Plan those plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto or a description of each Company Employee Plan that is unwritten, has and written interpretations thereof have been made available to Parent together with the most recent annual report (Form 5500 including, where if applicable, all schedules and actuarial and accountants’ reports) and Tax Return (Form 990Schedule B thereto) prepared in connection with any such plan or trust. Those plans are referred to collectively in this Agreement as the "EMPLOYEE PLANS".
(b) No Neither the Company nor any ERISA Affiliate nor to the Knowledge of the Company any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Employee Plan is subject to Title IV of ERISA with such exceptions as would not be reasonably expected to have any material liability for the Company, the Surviving Corporation or Section 412 of the Codetheir respective Affiliates.
(c) No Neither the Company Employee Plan is a nor any ERISA Affiliate nor any predecessor thereof contributes to, or has in the past contributed to, any multiemployer plan, as defined in Section 3(37) of ERISA (a “Multiemployer Plan”"MULTIEMPLOYER PLAN"), or a multiple employer welfare arrangement as defined in Section 3(40) of ERISA (a “MEWA”) or a multiple employer plan as defined in Section 413(c) of the Code. Neither the Company, any if its subsidiaries nor any of their ERISA Affiliates has (i) ever been obligated to contribute to a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA); or (ii) to the knowledge of the Company, ever maintained a Company Employee Plan which was ever subject to the laws of any jurisdiction outside of the United States.
(d) Except as has not and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, each Company Each Employee Plan that which is intended to be qualified under Section 401(a) of the Code (each, a “Company Qualified Plan”) is so qualified and the plan as currently in effect has received a favorable determination letter letter, or has pending or has time remaining in which to file, an application for that effect determination from the Internal Revenue Service, no such determination letter has been revoked and revocation has the Company is not been threatened, and to the Company’s knowledge, there is no aware of any reason why any such determination letter should be revoked or not be reissued. The Company has made available to Parent copies of the most recent Internal Revenue Service determination letters with respect to each such Company Qualified Employee Plan. Each Company Employee Plan has been maintained in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Company that Employee Plan with such exceptions as would not have or be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect on any material liability for the Company. Each Company Employee Plan that is a “nonqualified deferred compensation plan” within , the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in good faith compliance in all material respects with Section 409A of the Code and the regulations, guidance and notices issued thereunder. The Company has complied in all material respects with the reporting and wage withholding requirements under Section 409A of the Code and applicable IRS guidanceSurviving Corporation or their respective Affiliates. No material events have occurred with respect to any Company Employee Plan that could result in payment or assessment by or against the Company or any of its ERISA Affiliates of any material excise Taxes taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code or any penalty or tax under Section 5.02(i) of ERISA except for any with such payment or assessment exceptions as would not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect on any material liability for the Company, the Surviving Corporation or their respective Affiliates.
(e) There is no current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits or other retiree benefits for any person, retired, former or current employees The consummation of the Company transactions contemplated by this Agreement will not (either alone or its subsidiariestogether with any other event) entitle any director, except as required by Applicable Law or under Section 4980B of the Code (“COBRA”). No condition exists that would prevent the Company or any of its ERISA Affiliates from amending or terminating any Company Employee Plan providing health or medical benefits in respect of any current or former employees of the Company or its subsidiaries. None of the Companyofficer, any if its subsidiaries, or any Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person, except as required by Applicable Law and there has been no communication to current or former employees by the Company or any of its subsidiaries which could reasonably be interpreted to promise or guarantee such employees retiree health or life insurance or other retiree death benefits on a permanent basis.
(f) All contributions and payments due under each Company Employee Plan, determined in accordance with GAAP, as adjusted to include proportional accruals for the period ending on the Effective Time, will be discharged and paid on or prior to the Effective Time except to the extent accrued as a liability in accordance with ordinary Company practice. There has been no amendment to, written interpretation of or announcement (whether or not written) by the Company or any of its ERISA Affiliates relating to, or change in employee participation or coverage under, any Company Employee Plan which would increase materially the expense of maintaining such Company Employee Plan above the level of the expense incurred in respect thereof for the most recent fiscal year ended prior to the date hereof. With respect to each Company Employee Plan, there are no benefit obligations for which contributions have not been made or properly accrued to the extent required by GAAP on the Company’s financial statements. The assets of each Company Employee Plan which is funded are reported at their fair market value on the books and records of such Company Employee Plan and, if applicable, the Company’s financial statements.
(g) No employee or former employee independent contractor of the Company or any of its subsidiaries will become entitled Subsidiaries to severance pay or accelerate the time of payment or vesting or trigger any bonus, retirement, severance, job security payment of funding (through a grantor trust or similar benefit, or the enhancement of any such benefit, as a result of the transactions contemplated hereby alone or together with any other event. Except as set forth on Section 2.21(g)(iotherwise) of the Company Disclosure Schedulecompensation or benefits under, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event) result in, or cause the accelerated vesting, funding or delivery of, or increase the amount payable or value oftrigger any other material obligation pursuant to, any payment or benefit to any employee, officer or director of the Company or any of its subsidiaries, or could limit the right of the Company or any of its subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Employee Plan or related trustPlan. There is no Contractcontract, plan or arrangement (written or otherwise) covering any employee or former employee of the Company or any of its subsidiaries Subsidiaries that, individually or collectively, would entitle any employee or former employee to any severance or other payment solely as a result of the transactions contemplated hereby, or could give rise to the payment of any amount that would not be deductible pursuant to the terms of Sections Section 280G or 162(m) of the Code. Schedule 4.18(e) sets forth, as a result opposite the name of each person listed in that schedule, the maximum bonus payment to which that person may be entitled in respect of the transactions contemplated hereby alone or together with Company's fiscal year ending May 31, 2004 under the Company's CEO Bonus Plan, 2004 Bonus Plan, Long-Term Executive Bonus Plan and any other event. The information set forth on Section 2.21(g)(iibonus plan or arrangement.
(f) Neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company Disclosure Schedule regarding severance arrangements for certain executive officers and certain other executives or its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code or as may be required under other applicable law.
(g) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company is true and correct or any of its Affiliates relating to, or change in all material respects as employee participation or coverage under, an Employee Plan which would increase materially the expense of October 25maintaining that Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended May 31, 20072003.
(h) No “prohibited transactions” within All contributions and payments accrued under each Employee Plan, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the meaning of Section 4975 period ending as of the Code date of this Agreement, have been discharged, paid or Sections 406 and 407 of ERISA, that are not otherwise exempt under Section 408 of ERISA, has occurred accrued in accordance with respect to any ordinary Company Employee Plan. practice.
(i) There is no material action, suit, investigation, audit, arbitration audit or proceeding (i) pending against or involving or, to the knowledge Knowledge of the Company, threatened against or involving, any Company Employee Plan or (ii) involving the Company’s classification of individuals as either employees or independent contractors, in each case, before any court or arbitrator or any Governmental Entity.
(i) There is no material actionstate, suitfederal or local governmental body, investigationagency or official with such exceptions as would not be reasonably expected, audit, arbitration individually or proceeding (i) pending against or involving orin the aggregate, to the knowledge of have any material liability for the Company, threatened against any Company Employee Plan, (ii) pending or, to the knowledge of the Company, threatened involving the Company’s Surviving Corporation or any of its subsidiaries’ classification of individuals as either employees or independent contractors, (iii) pending or, to the knowledge of the Company, threatened involving the Company’s or any of its subsidiaries’ classification of Employees as exempt or non-exempt for purposes of wage and hour laws, rules or regulations, or (iv) pending or, to the knowledge of the Company, threatened under any workers compensation policy or long-term disability policy, in each case, before or by any arbitrator or any Governmental Entity other than routine claims for benefits payable under any such policytheir respective Affiliates.
(j) The Company has no material Employee Plan that principally covers non-U.S. employees.
(k) Neither the Company nor any of its subsidiaries Subsidiaries is a party to or subject to or otherwise bound byto, or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract contract or understanding with a labor union or organization nor has any labor organization or group of employees nor, as of the Company and its subsidiaries made a pending demand for recognition or certificationdate hereof, and, to the knowledge of the Company, there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority seeking to compel it to bargain with any labor union or labor organization. Neither is the Company nor or any of its subsidiaries is Subsidiaries the subject of any material proceeding, action, claim, grievance, audit or investigation (by or before any arbitrator or any Governmental Entity) and, to the knowledge of the Company, no such material proceeding, action, claim, grievance, audit or investigation is threatened, proceeding asserting that the Company or any of its subsidiaries Subsidiaries has violated any wage-hour law, rule or regulation, any law, rule or regulation regarding employment discrimination, harassment, retaliation or fair employment practices, any law, rule or regulation regarding workers compensation, payroll and employment related taxes and withholdings, or unemployment insurance, or committed an unfair labor practice or seeking to compel the Company or any of its subsidiaries it to bargain with any labor union or labor organization nor is there pending or, to the knowledge Knowledge of the Company, threatened, nor has there been for the past five (5) years, any labor strike, material dispute, walk-out, work stoppage, slow-down or lockout, material arbitrations or material grievances, lockout involving the Company or any of its subsidiariesSubsidiaries. To the knowledge of the Company, as of the date hereof, there There are no campaigns being conducted to solicit cards from the Company employees to authorize (or to express an interest in authorizing) representation by a an labor organization or other proposed bargaining unit representative.
(kl) Except as to noncompliance that would not have Since January 1, 2000, neither the Company nor any of its Subsidiaries has closed any facility or reasonably be expected to have a Material Adverse Effect on work site used in the business of the Company or any of its subsidiariesSubsidiaries or effectuated any material employee layoffs or down-sizing or implemented any early retirement, each of the Company and its subsidiaries is in compliance with all Applicable Laws, agreements and Employee Plans respecting employment and employment practices, terms and conditions of employment, wages and hours, payroll and employment related taxes, social security, unemployment insurance, workers compensation, and other required withholdings from wages, salaries and other payments to Employees, employee benefits, immigration (including, without limitation, federal, state and local laws and regulations relating to the status, employment and eligibility of employment of all Employees, including without limitation the Immigration Reform Control separation or window program or announced any such action or program that has triggered any WARN Act and all rules and regulations of the Bureau of Citizenship and Immigration Services of the U.S. Department of Homeland Security (previously the U.S. Immigration and Naturalization Service)), occupational safety and health, and mass layoffs and plant closings (including, without limitation, the Worker Adjustment and Retraining Notification Act and all requirements or similar state and local or foreign labor laws). Neither the Company nor any of its subsidiaries has any employment contracts or, employee agreements, currently in effect that are not terminable at will (other than agreements for the sole purpose of providing for the confidentiality of proprietary information or, assignment of inventions), except as set forth on Sections 2.16(a)(i), 2.21(a), 2.21(g) and 2.24 of the Company Disclosure Schedule.
Appears in 1 contract
Samples: Merger Agreement (Vans Inc)
