Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a) of the GFI Disclosure Letter contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangement, and each other material employee benefit plan, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary. (b) With respect to each of the GFI Benefit Plans, GFI has delivered or made available to Parent complete copies of each of the following documents: (i) the GFI Benefit Plan governing documentation (including all amendments thereto); (ii) the annual report and actuarial report, if required under ERISA or the Code or any Law, for the most recent plan year; (iii) the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereof; and (v) the most recent determination letter received from the IRS with respect to each GFI Benefit Plan that is intended to be qualified under Section 401(a) of the Code. (c) In the past six years, neither GFI nor any ERISA Affiliate has maintained or contributed to or was required to contribute to any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA. (d) Each GFI Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge of GFI, no event has occurred that could reasonably be expected to result in disqualification of such GFI Benefit Plan. (e) Each of the GFI Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code. (f) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes. (g) Neither the execution of this Agreement nor the consummation of the Transactions will (either alone or together with any other event) (i) cause any payment (whether of severance pay or otherwise) to become due to any current or former employee or director of GFI or a GFI Subsidiary, (ii) cause an increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI Subsidiary, (iii) cause any individual to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under Section 280G of the Code. (h) There are no pending or, to the Knowledge of GFI, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits). (i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code. (j) No GFI Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of GFI or any GFI Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary. (k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant. (l) With respect to each GFI Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): (i) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law or by the terms of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension plan.
Appears in 5 contracts
Samples: Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (BGC Partners, Inc.)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a3.18(a) of the GFI Company Disclosure Letter contains Schedule sets forth as of the date of this Agreement a true and complete list of the material Company Benefit Plans, including all Company Benefit Plans subject to ERISA. With respect to each such material employmentCompany Benefit Plan, bonusthe Company has made available to Parent a true and complete copy of such Company Benefit Plan, deferred compensationif written, incentive compensation, stock purchase, stock option, retention, change or a description of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangementthe material terms of such Company Benefit Plan if not written, and each other material employee benefit planto the extent applicable, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFIany proposed amendments, (ii) any GFI Subsidiary all trust agreements, insurance contracts or (iii) any ERISA Affiliateother funding arrangements, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of the GFI Benefit Plans, GFI has delivered or made available to Parent complete copies of each of the following documents: (i) the GFI Benefit Plan governing documentation (including all amendments thereto); (ii) the annual report and actuarial report, if required under ERISA or the Code or any Law, for the most recent plan year; (iii) the most recent Summary Plan Descriptionactuarial and trust reports for both ERISA funding and financial statement purposes, together with each Summary of Material Modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereof; Form 5500 with all attachments required to have been filed with the IRS or the Department of Labor and all schedules thereto, (v) the most recent IRS determination letter received from the IRS with respect to each GFI or opinion letter, and (vi) all current summary plan descriptions.
(b) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code, and the trust (if any) forming a part thereof, has received a favorable determination letter from the IRS that the Company Benefit Plan is so qualified, or an advisory or opinion letter that the form of such plan document satisfies the requirements to be so qualified, and, to the knowledge of the Company, there are no existing circumstances or any events that would reasonably be expected to adversely affect the qualified status of any such plan in a manner which would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Each Company Benefit Plan has been administered and operated in all material respects with its terms and with applicable Law, including ERISA and the Code, and, except in each case as would not, individually or in the aggregate, reasonably be expected to result in material liability to the Company and the Company Subsidiaries, taken as a whole, all contributions required to be made to any Company Benefit Plan (or related trusts) by applicable Law or by any plan document or other Contract have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the books and records of the Company.
(c) In Neither the Company nor any of the Company Subsidiaries (i) contributes to, sponsors or maintains, or has any liability (including as an ERISA Affiliate) or (ii) has in the past six years(6) years sponsored, neither GFI nor any ERISA Affiliate has maintained or maintained, contributed to or was required to contribute to had, or has any liability that remains unsatisfied in respect of any (A) “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA, (B) defined benefit pension plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of or Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iiiC) a multiemployer plan within plan, program, Contract, policy, arrangement or agreement that provides for material post-retirement or post-termination health, life insurance or other welfare type benefits (other than pursuant to Section 601 of ERISA and Section 4980B of the meaning of Section 3(37Code (COBRA) or 4001(a)(3) of ERISAsimilar state law).
(d) Each GFI Benefit Plan intended There are no claims pending, or to be “qualified” within the meaning of Section 401(a) knowledge of the Code has received a favorable determination letter from Company, threatened in writing with respect to any of the IRS Company Benefit Plans by any employee or otherwise involving any such plan or the assets of any such plan (other than routine claims for benefits), except in each case as to its qualification andwould not, to individually or in the Knowledge of GFIaggregate, no event has occurred that could reasonably be expected to result in disqualification of such GFI a material liability to the Company and the Company Subsidiaries, taken as a whole. There are no audits, inquiries or proceedings pending or, to the Company’s knowledge, threatened, by the IRS, DOL, or other Governmental Entity with respect to any Company Benefit Plan.
(e) Each of the GFI Benefit Plans has been operated and administered Except as provided in all material respects in accordance with its terms and all applicable LawsSection 1.7, including ERISA and the Code.
(f) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither neither the execution and delivery of this Agreement nor the consummation of the Transactions transactions contemplated by this Agreement will (either alone or together with any other event) (i) result in, or cause the accelerated vesting, payment, funding or delivery of, or increase the amount or value of, any payment (whether of severance pay or otherwise) to become due benefit to any current employee, officer, trustee, director or former employee other service provider of the Company or director any of GFI or a GFI Subsidiarythe Company Subsidiaries, (ii) cause result in an increase in obligation to fund benefits under any Company Benefit Plan or limit or restrict the amount of compensation right to merge, amend, terminate, or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI Subsidiary, (iii) cause result in any individual payment or benefit to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under constitute an “excess parachute payment” (within the meaning of Section 280G of the Code.
(h) There are no pending or, to the Knowledge of GFI, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) . No GFI Company Benefit Plan provides benefits, including death for a gross up or medical benefits (whether indemnification for taxes due under Code Section 4999 or not insured), with respect to current or former employees or directors of GFI or any GFI Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(l) With respect to each GFI Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): (i) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law or by the terms of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension plan.409A.
Appears in 4 contracts
Samples: Merger Agreement (Monmouth Real Estate Investment Corp), Merger Agreement (Monmouth Real Estate Investment Corp), Merger Agreement (Equity Commonwealth)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a4.17(a) of the GFI Parent Disclosure Letter contains Schedule sets forth as of the date of this Agreement a true and complete list of the material Parent Benefit Plans, including all Parent Benefit Plans subject to ERISA. With respect to each such material employmentParent Benefit Plan, bonusParent has made available to the Company a true and complete copy of such Parent Benefit Plan, deferred compensationif written, incentive compensation, stock purchase, stock option, retention, change or a description of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangementthe material terms of such Parent Benefit Plan if not written, and each other material employee benefit planto the extent applicable, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFIany proposed amendments, (ii) any GFI Subsidiary all trust agreements, insurance contracts or (iii) any ERISA Affiliateother funding arrangements, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of the GFI Benefit Plans, GFI has delivered or made available to Parent complete copies of each of the following documents: (i) the GFI Benefit Plan governing documentation (including all amendments thereto); (ii) the annual report and actuarial report, if required under ERISA or the Code or any Law, for the most recent plan year; (iii) the most recent Summary Plan Descriptionactuarial and trust reports for both ERISA funding and financial statement purposes, together with each Summary of Material Modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereof; Form 5500 with all attachments required to have been filed with the IRS or the Department of Labor and all schedules thereto, (v) the most recent IRS determination letter received from the IRS with respect to each GFI or opinion letter, and (vi) all current summary plan descriptions.
(b) Each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code, and the trust (if any) forming a part thereof, has received a favorable determination letter from the IRS that the Parent Benefit Plan is so qualified, or an advisory or opinion letter that the form of such plan document satisfies the requirements to be so qualified, and, to the knowledge of Parent, there are no existing circumstances or any events that would reasonably be expected to adversely affect the qualified status of any such plan in a manner which would, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. Each Parent Benefit Plan has been administered and operated in accordance with its terms and with applicable Law, including ERISA and the Code, except as would not, individually or in the aggregate, reasonably be expected to result in material liability to the Company and the Company Subsidiaries, taken as a whole, and all contributions required to be made to any Parent Benefit Plan (or related trusts) by applicable Law or by any plan document or other Contract have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the books and records of Parent.
(c) In Neither Parent nor any of the Parent Subsidiaries (i) contributes to, sponsors or maintains, or has any liability (including as an ERISA Affiliate) or (ii) has in the past six years(6) years sponsored, neither GFI nor any ERISA Affiliate has maintained or maintained, contributed to or was required to contribute to had, or has any liability that remains unsatisfied in respect of any (A) “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA, (B) defined benefit pension plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of or Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iiiC) a multiemployer plan within plan, program, Contract, policy, arrangement or agreement that provides for material post-retirement or post-termination health, life insurance or other welfare type benefits (other than pursuant to Section 601 of ERISA and Section 4980B of the meaning of Section 3(37Code (COBRA) or 4001(a)(3) of ERISAsimilar state law).
(d) Each GFI Benefit Plan intended There are no claims pending, or to be “qualified” within the meaning knowledge of Section 401(a) Parent, threatened in writing with respect to any of the Code has received a favorable determination letter from Parent Benefit Plans by any employee or otherwise involving any such plan or the IRS assets of any such plan (other than routine claims for benefits), except as to its qualification andwould not, to individually or in the Knowledge of GFIaggregate, no event has occurred that could reasonably be expected to result in disqualification of such GFI have a Parent Material Adverse Effect. There are no audits, inquiries or proceedings pending or, to Parent’s knowledge, threatened, by the IRS, DOL, or other Governmental Entity with respect to any Parent Benefit Plan.
(e) Each of the GFI Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code.
(f) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution and delivery of this Agreement nor the consummation of the Transactions transactions contemplated by this Agreement will (either alone or together with any other event) (i) result in, or cause the accelerated vesting, payment, funding or delivery of, or increase the amount or value of, any payment (whether of severance pay or otherwise) to become due benefit to any current employee, officer, trustee, director or former employee other service provider of Parent or director any of GFI or a GFI Subsidiarythe Parent Subsidiaries, (ii) cause result in an increase in obligation to fund benefits under any Parent Benefit Plan or limit or restrict the amount of compensation right to merge, amend, terminate, or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI Subsidiary, (iii) cause result in any individual payment or benefit to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under constitute an “excess parachute payment” (within the meaning of Section 280G of the Code.
(h) There are no pending or, to the Knowledge of GFI, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) . No GFI Parent Benefit Plan provides benefits, including death for a gross up or medical benefits (whether indemnification for taxes due under Code Section 4999 or not insured), with respect to current or former employees or directors of GFI or any GFI Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(l) With respect to each GFI Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): (i) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law or by the terms of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension plan.409A.
Appears in 4 contracts
Samples: Merger Agreement (Monmouth Real Estate Investment Corp), Merger Agreement (Monmouth Real Estate Investment Corp), Merger Agreement (Equity Commonwealth)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a) of the GFI Disclosure Letter contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangement, and each other material employee benefit plan, program, agreement or arrangement (collectively, but without regard to any materiality qualifier, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of the material GFI Benefit Plans, GFI has delivered or made available to Parent BGCP complete copies of each of the following documents: (i) the GFI Benefit Plan governing documentation (including all amendments thereto); (ii) the annual report and actuarial report, if required under ERISA or the Code or any Law, for the most recent plan year; (iii) the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereof; and (v) the most recent determination letter received from the IRS with respect to each GFI Benefit Plan that is intended to be qualified under Section 401(a) of the Code.
(c) In the past six years, neither GFI nor any ERISA Affiliate has maintained or contributed to or was required to contribute to any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge of GFI, no event has occurred that could reasonably be expected to result in disqualification of such GFI Benefit Plan.
(e) Each of the material GFI Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code.
(f) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution of this Agreement nor the consummation of the Transactions will (either alone or together with any other event) (i) cause any payment (whether of severance pay or otherwise) to become due to any current or former employee or director of GFI or a GFI Subsidiary, (ii) cause an increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI Subsidiary, (iii) cause any individual to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under Section 280G of the Code. Section 2.16(g)(vi) of the GFI Disclosure Letter contains a true and complete list, as of the date hereof, of all GFI Benefit Plans containing any reference to BGC, Purchaser or any of its Affiliates.
(h) There are no pending or, to the Knowledge of GFI, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) No GFI Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of GFI or any GFI Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(l) With respect to each material GFI Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): (i) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law or by the terms of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension plan.
Appears in 3 contracts
Samples: Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (GFI Group Inc.), Tender Offer Agreement (BGC Partners, Inc.)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a3.18(a) of the GFI Company Disclosure Letter contains Schedule sets forth as of May 4, 2021 a true and complete list of the material Company Benefit Plans, including all Company Benefit Plans subject to ERISA. With respect to each such material employmentCompany Benefit Plan, bonusthe Company has made available to Parent a true and complete copy of such Company Benefit Plan, deferred compensationif written, incentive compensation, stock purchase, stock option, retention, change or a description of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangementthe material terms of such Company Benefit Plan if not written, and each other material employee benefit planto the extent applicable, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFIany proposed amendments, (ii) any GFI Subsidiary all trust agreements, insurance contracts or (iii) any ERISA Affiliateother funding arrangements, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of the GFI Benefit Plans, GFI has delivered or made available to Parent complete copies of each of the following documents: (i) the GFI Benefit Plan governing documentation (including all amendments thereto); (ii) the annual report and actuarial report, if required under ERISA or the Code or any Law, for the most recent plan year; (iii) the most recent Summary Plan Descriptionactuarial and trust reports for both ERISA funding and financial statement purposes, together with each Summary of Material Modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereof; Form 5500 with all attachments required to have been filed with the IRS or the Department of Labor and all schedules thereto, (v) the most recent IRS determination letter received from the IRS with respect to each GFI or opinion letter, and (vi) all current summary plan descriptions.
(b) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code, and the trust (if any) forming a part thereof, has received a favorable determination letter from the IRS that the Company Benefit Plan is so qualified, or an advisory or opinion letter that the form of such plan document satisfies the requirements to be so qualified, and, to the knowledge of the Company, there are no existing circumstances or any events that would reasonably be expected to adversely affect the qualified status of any such plan in a manner which would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Each Company Benefit Plan has been administered and operated in all material respects with its terms and with applicable Law, including ERISA and the Code, and, except in each case as would not, individually or in the aggregate, reasonably be expected to result in material liability to the Company and the Company Subsidiaries, taken as a whole, all contributions required to be made to any Company Benefit Plan (or related trusts) by applicable Law or by any plan document or other Contract have been timely made or paid in full or, to the extent not required to be made or paid on or before May 4, 2021, have been fully reflected on the books and records of the Company.
(c) In Neither the past six years, neither GFI Company nor any of the Company Subsidiaries (i) contributes to, sponsors or maintains, or has any liability (including as an ERISA Affiliate Affiliate) or (ii) has maintained or in the six (6) years immediately preceding May 4, 2021 sponsored, maintained, contributed to or was required to contribute to had, or has any liability that remains unsatisfied in respect of any (A) “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA, (B) defined benefit pension plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of or Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iiiC) a multiemployer plan within plan, program, Contract, policy, arrangement or agreement that provides for material post-retirement or post-termination health, life insurance or other welfare type benefits (other than pursuant to Section 601 of ERISA and Section 4980B of the meaning of Section 3(37Code (COBRA) or 4001(a)(3) of ERISAsimilar state law).
(d) Each GFI Benefit Plan intended There are no claims pending, or to be “qualified” within the meaning of Section 401(a) knowledge of the Code has received a favorable determination letter from Company, threatened in writing with respect to any of the IRS Company Benefit Plans by any employee or otherwise involving any such plan or the assets of any such plan (other than routine claims for benefits), except in each case as to its qualification andwould not, to individually or in the Knowledge of GFIaggregate, no event has occurred that could reasonably be expected to result in disqualification of such GFI a material liability to the Company and the Company Subsidiaries, taken as a whole. There are no audits, inquiries or proceedings pending or, to the Company’s knowledge, threatened, by the IRS, DOL, or other Governmental Entity with respect to any Company Benefit Plan.
(e) Each of the GFI Benefit Plans has been operated and administered Except as provided in all material respects in accordance with its terms and all applicable LawsSection 1.7, including ERISA and the Code.
(f) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither neither the execution and delivery of this Agreement nor the consummation of the Transactions transactions contemplated by this Agreement will (either alone or together with any other event) (i) result in, or cause the accelerated vesting, payment, funding or delivery of, or increase the amount or value of, any payment (whether of severance pay or otherwise) to become due benefit to any current employee, officer, trustee, director or former employee other service provider of the Company or director any of GFI or a GFI Subsidiarythe Company Subsidiaries, (ii) cause result in an increase in obligation to fund benefits under any Company Benefit Plan or limit or restrict the amount of compensation right to merge, amend, terminate, or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI Subsidiary, (iii) cause result in any individual payment or benefit to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under constitute an “excess parachute payment” (within the meaning of Section 280G of the Code.
(h) There are no pending or, to the Knowledge of GFI, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) . No GFI Company Benefit Plan provides benefits, including death for a gross up or medical benefits (whether indemnification for taxes due under Code Section 4999 or not insured), with respect to current or former employees or directors of GFI or any GFI Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(l) With respect to each GFI Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): (i) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law or by the terms of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension plan.409A.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Equity Commonwealth)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a3.20(a) of the GFI Company Disclosure Letter contains Schedule sets forth as of the date of this Agreement a true and complete list of the Company Benefit Plans, including all Company Benefit Plans subject to ERISA or similar provisions of non-U.S. Law. With respect to each such Company Benefit Plan, the Company has made available to Parent a true and complete copy of such Company Benefit Plan, if written, or a description of the material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change terms of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangementsuch Company Benefit Plan if not written, and each other material employee benefit planto the extent applicable, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFIall trust agreements, insurance contracts or other funding arrangements, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of the GFI Benefit Plans, GFI has delivered or made available to Parent complete copies of each of the following documents: (i) the GFI Benefit Plan governing documentation (including all amendments thereto); (ii) the annual report and actuarial report, if required under ERISA or the Code or any Law, for the most recent plan year; actuarial and trust reports for both ERISA funding and financial statement purposes, (iii) the most recent Summary Form 5500 with all attachments required to have been filed with the IRS or the Department of Labor or any similar reports filed with any comparable Governmental Entity in any non-U.S. jurisdiction having jurisdiction over any Company Benefit Plan Descriptionand all schedules thereto, together with each Summary of Material Modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereof; IRS determination or opinion letter, and (v) the most recent determination letter received from the IRS with respect to each GFI all current summary plan descriptions.
(b) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code, and the trust (if any) forming a part thereof, has received a favorable determination letter from the IRS that the Company Benefit Plan is so qualified, or an advisory or opinion letter that the form of such plan document satisfies the requirements to be so qualified, and, to the knowledge of the Company, there are no existing circumstances or any events that would reasonably be expected to adversely affect the qualified status of any such plan. Each Company Benefit Plan has been administered and operated in all material respects in accordance with its terms and with applicable Law.
(c) In Neither the Company nor any of its Subsidiaries, nor any of their ERISA Affiliates contributes to, sponsors or maintains or has in the past six yearssponsored, neither GFI nor any ERISA Affiliate has maintained or maintained, contributed to or was required to contribute to had any liability in respect of any pension plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of or Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge of GFI, no event has occurred that could reasonably be expected to result in disqualification of such GFI Benefit Plan.
(e) Each of the GFI Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code.
(f) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution of this Agreement nor the consummation of the Transactions will (either alone or together with any other event) (i) cause any payment (whether of severance pay or otherwise) to become due to any current or former employee or director of GFI or a GFI Subsidiary, (ii) cause an increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI Subsidiary, (iii) cause any individual to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under Section 280G of the Code.
(h) There are no claims pending or, to the Knowledge of GFI, or threatened material claims in writing with respect of or relating to any of the GFI Company Benefit Plans, Plans by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan such plan or the assets of any such plan (other than routine claims for benefits), except as would not, individually or in the aggregate, be material.
(ie) Neither GFI, any GFI Subsidiary, any GFI No Company Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in Plan is a transaction in connection that could reasonably be expected to give rise to a civil liability under either “multiemployer plan” within the meaning of Section 409 of ERISA or Section 502(i4001(a)(3) of ERISA or is a tax imposed pursuant “multiple employer plan” within the meaning of Section 4063 or 4064 of ERISA. Neither the Company nor any of its Subsidiaries has at any time during the last six (6) years contributed to Section 4975 or 4976 been obligated to contribute to any such type of the Codeplan.
(jf) No GFI Benefit Plan provides benefitsNeither the Company nor any of its Subsidiaries has any material liability in respect of post-retirement health, including death medical or medical life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required by Law.
(whether g) Except as set forth in Section 3.20(g) of the Company Disclosure Schedule, the consummation of the transactions to which the Company is a party contemplated hereby, will not, either alone or not insured)in combination with another event, with respect to (i) entitle any current or former employees director, officer or directors employee of GFI the Company or of any of its Subsidiaries to severance pay, unemployment compensation or any GFI Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Lawpayment, (ii) death benefits result in any payment becoming due, accelerate the time of payment or retirement benefits vesting, or increase the amount of compensation due to any such director, officer or employee, (iii) result in any forgiveness of indebtedness, trigger any funding obligation under any Company Benefit Plan or impose any restrictions or limitations on the Company’s rights to administer, amend or terminate any Company Benefit Plan or (iv) result in any payment (whether in cash or property or the vesting of property) to any “employee pension plandisqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) that would reasonably be construed, individually or in combination with any other such payment, to constitute an “excess parachute payment” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(l) With respect to each GFI Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): (i) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law or by the terms of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l280G(b)(1) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension planCode).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Specialty Underwriters Alliance, Inc.), Agreement and Plan of Merger (Tower Group, Inc.), Merger Agreement (Tower Group, Inc.)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a4.17(a) of the GFI Parent Disclosure Letter contains Schedule sets forth as of May 4, 2021 a true and complete list of the material Parent Benefit Plans, including all Parent Benefit Plans subject to ERISA. With respect to each such material employmentParent Benefit Plan, bonusParent has made available to the Company a true and complete copy of such Parent Benefit Plan, deferred compensationif written, incentive compensation, stock purchase, stock option, retention, change or a description of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangementthe material terms of such Parent Benefit Plan if not written, and each other material employee benefit planto the extent applicable, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFIany proposed amendments, (ii) any GFI Subsidiary all trust agreements, insurance contracts or (iii) any ERISA Affiliateother funding arrangements, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of the GFI Benefit Plans, GFI has delivered or made available to Parent complete copies of each of the following documents: (i) the GFI Benefit Plan governing documentation (including all amendments thereto); (ii) the annual report and actuarial report, if required under ERISA or the Code or any Law, for the most recent plan year; (iii) the most recent Summary Plan Descriptionactuarial and trust reports for both ERISA funding and financial statement purposes, together with each Summary of Material Modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereof; Form 5500 with all attachments required to have been filed with the IRS or the Department of Labor and all schedules thereto, (v) the most recent IRS determination letter received from the IRS with respect to each GFI or opinion letter, and (vi) all current summary plan descriptions.
(b) Each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code, and the trust (if any) forming a part thereof, has received a favorable determination letter from the IRS that the Parent Benefit Plan is so qualified, or an advisory or opinion letter that the form of such plan document satisfies the requirements to be so qualified, and, to the knowledge of Parent, there are no existing circumstances or any events that would reasonably be expected to adversely affect the qualified status of any such plan in a manner which would, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. Each Parent Benefit Plan has been administered and operated in accordance with its terms and with applicable Law, including ERISA and the Code, except as would not, individually or in the aggregate, reasonably be expected to result in material liability to the Company and the Company Subsidiaries, taken as a whole, and all contributions required to be made to any Parent Benefit Plan (or related trusts) by applicable Law or by any plan document or other Contract have been timely made or paid in full or, to the extent not required to be made or paid on or before May 4, 2021, have been fully reflected on the books and records of Parent.
(c) In the past six years, neither GFI Neither Parent nor any of the Parent Subsidiaries (i) contributes to, sponsors or maintains, or has any liability (including as an ERISA Affiliate Affiliate) or (ii) has maintained or in the six (6) years immediately preceding May 4, 2021 sponsored, maintained, contributed to or was required to contribute to had, or has any liability that remains unsatisfied in respect of any (A) “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA, (B) defined benefit pension plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of or Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iiiC) a multiemployer plan within plan, program, Contract, policy, arrangement or agreement that provides for material post-retirement or post-termination health, life insurance or other welfare type benefits (other than pursuant to Section 601 of ERISA and Section 4980B of the meaning of Section 3(37Code (COBRA) or 4001(a)(3) of ERISAsimilar state law).
(d) Each GFI Benefit Plan intended There are no claims pending, or to be “qualified” within the meaning knowledge of Section 401(a) Parent, threatened in writing with respect to any of the Code has received a favorable determination letter from Parent Benefit Plans by any employee or otherwise involving any such plan or the IRS assets of any such plan (other than routine claims for benefits), except as to its qualification andwould not, to individually or in the Knowledge of GFIaggregate, no event has occurred that could reasonably be expected to result in disqualification of such GFI have a Parent Material Adverse Effect. There are no audits, inquiries or proceedings pending or, to Parent’s knowledge, threatened, by the IRS, DOL, or other Governmental Entity with respect to any Parent Benefit Plan.
(e) Each of the GFI Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code.
(f) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution and delivery of this Agreement nor the consummation of the Transactions transactions contemplated by this Agreement will (either alone or together with any other event) (i) result in, or cause the accelerated vesting, payment, funding or delivery of, or increase the amount or value of, any payment (whether of severance pay or otherwise) to become due benefit to any current employee, officer, trustee, director or former employee other service provider of Parent or director any of GFI or a GFI Subsidiarythe Parent Subsidiaries, (ii) cause result in an increase in obligation to fund benefits under any Parent Benefit Plan or limit or restrict the amount of compensation right to merge, amend, terminate, or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI Subsidiary, (iii) cause result in any individual payment or benefit to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under constitute an “excess parachute payment” (within the meaning of Section 280G of the Code.
(h) There are no pending or, to the Knowledge of GFI, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) . No GFI Parent Benefit Plan provides benefits, including death for a gross up or medical benefits (whether indemnification for taxes due under Code Section 4999 or not insured), with respect to current or former employees or directors of GFI or any GFI Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(l) With respect to each GFI Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): (i) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law or by the terms of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension plan.409A.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Equity Commonwealth)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a3.13(a) of the GFI Company Disclosure Letter contains a true correct and complete list of each material employment“employee benefit plan” within the meaning of Section 3(3) of ERISA and all other employee compensation and benefits plans, bonuspolicies, deferred compensationprograms, incentive compensationarrangements or payroll practices, including multiemployer plans within the meaning of Section 3(37) of ERISA, and each other stock purchase, stock option, restricted stock, severance, retention, change of employment, consulting, change-of-control, severance or termination paycollective bargaining, hospitalization or bonus, incentive, deferred compensation, employee loan, fringe benefit and other medicalbenefit plan, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement planagreement, program, trustpolicy, agreement commitment or other arrangement, and whether or not subject to ERISA (including any related funding mechanism now in effect or required in the future), whether formal or informal, oral or written, in each other material employee benefit plancase sponsored, programmaintained, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) the Company or its Subsidiaries or under which the Company or any GFI Subsidiary of its Subsidiaries or (iii) any ERISA Affiliate, in joint venture of the Company or any case for the benefit of its Subsidiaries has any current or former employeepotential liability. All such plans, workeragreements, consultantprograms, director or member of GFI or any GFI Subsidiarypolicies, commitments and arrangements are collectively referred to as the “Company Benefit Plans“.
(b) With respect to each of the GFI Benefit Plans, GFI The Company has delivered provided or made available to Parent or its counsel with respect to each and every Company Benefit Plan a true and complete copies copy of each of all plan documents, if any, including related trust agreements, funding arrangements, and insurance contracts and all amendments thereto; and, to the following documents: extent applicable, (i) the GFI most recent determination or opinion letter, if any, received by the Company or Subsidiary from the IRS regarding the tax-qualified status of such Company Benefit Plan governing documentation (including all amendments thereto)Plan; (ii) the annual report and most recent financial statements for such Company Benefit Plan, if any; (iii) the most recent actuarial valuation report, if required under ERISA or any; (iv) the Code or current summary plan description and any Lawsummaries of material modifications; (v) Form 5500 Annual Returns/Reports, including all schedules and attachments, including the certified audit opinions, for the most recent plan year; and (iiivi) the most recent Summary Plan Descriptionwritten results of all compliance testing required pursuant to Sections 125, together with each Summary of Material Modifications401(a)(4), if required under ERISA401(k), 401(m), 410(b), 415, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereof; and (v) the most recent determination letter received from the IRS with respect to each GFI Benefit Plan that is intended to be qualified under Section 401(a) 416 of the Code.
(c) In No Company Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the past six yearsCode. No Company Benefit Plan is a “multiemployer plan” as defined in Section 3(37) of ERISA, neither GFI nor and none of the Company, or any ERISA Affiliate has maintained or contributed to or was required to contribute to withdrawn at any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement time within the meaning of Section 3(40) of ERISA preceding six years from any multiemployer plan, or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification andincurred any withdrawal liability which remains unsatisfied, to the Knowledge of GFI, and no event has events have occurred and no circumstances exist that could reasonably be expected to result in disqualification any such liability to the Company or any of its Subsidiaries. No event has occurred and no condition exists that would subject the Company or any of its Subsidiaries by reason of its affiliation with any ERISA Affiliate to any material (i) Tax, penalty or fine, (ii) Lien, or (iii) other liability imposed by ERISA, the Code or other applicable Laws.
(d) With respect to each Company Benefit Plan that is intended to qualify under Section 401(a) of the Code, such plan, and its related trust, has received, has an application pending or remains within the remedial amendment period for obtaining, a determination letter (or opinion letters in the case of any prototype plans) from the IRS that it is so qualified (taking into account all applicable matters under the Economic Growth and Tax Relief Reconciliation Act of 2001, the Pension Funding Equity Act of 2005 and the Pension Protection Act of 2006) and that its trust is exempt from tax under Section 501(a) of the Code, and nothing has occurred with respect to the operation of any such plan which could cause the loss of such GFI qualification or exemption or the imposition of any material liability, penalty or tax under ERISA or the Code. All amendments and actions required to bring the Company Benefit Plans into conformity in all material respects with all applicable provisions of ERISA, the Code and other applicable laws have been made or taken except to the extent that such amendments or actions are not required by law to be made or taken until a date after the Effective Time.
(e) There are no material pending or, to the Knowledge of the Company, threatened in writing actions, claims or lawsuits against or relating to the Company Benefit Plans, the assets of any of the trusts under such plans or the plan sponsor or the plan administrator, or against any fiduciary of the Company Benefit Plans with respect to the operation of such plans (other than routine benefits claims). No stock or other securities issued by the Company or any Subsidiary forms or has formed a material part of the assets of any Company Benefit Plan.
(ef) Each of the GFI Company Benefit Plans Plan has been operated established and administered in all material respects in accordance with its terms terms, and in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable Laws. Each “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) of the Company is in compliance in all material respects with Section 409A of the Code and the rules and regulations promulgated thereunder. All contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Company Benefit Plans to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof and all applicable Laws, including ERISA contributions for any period ending on or before the Closing Date which are not yet due will have been paid or accrued prior to the Closing Date. The Company has set aside in a “rabbi trust” sufficient assets to cover all liabilities and obligations that may arise pursuant to any Company Benefit Plan that constitutes a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code.
(f) Neither GFI nor any GFI Subsidiary has made any loans ), other than liabilities or obligations arising solely pursuant to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI an employment agreement or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposesseverance pay plan.
(g) None of the Company Benefit Plans provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA, any other applicable law or at the expense of the participant or the participant’s beneficiary. There has been no material violation of the “continuation coverage requirement” of “group health plans” as set forth in Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA with respect to any Company Benefit Plan to which such continuation coverage requirements apply.
(h) Neither the execution and delivery of this Agreement nor the consummation of the Transactions transactions contemplated hereby will (either alone or together in combination with any other another event) (i) cause result in any payment (whether becoming due, or increase the amount of severance pay any compensation or otherwise) to become due benefits due, to any current or former employee of the Company and its Subsidiaries or director of GFI or a GFI Subsidiary, with respect to any Company Benefit Plan; (ii) cause an increase any benefits otherwise payable under any Company Benefit Plan; (iii) result in the amount of compensation or benefits or the acceleration of the time of payment or vesting of any such compensation or timing benefits; or (iv) result in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or section 4975 of the Code.
(i) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) result in the payment of any compensation or benefits payable to amount that would, individually or in respect of combination with any current or former employee or director of GFI or a GFI Subsidiaryother such payment, (iii) cause any individual to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under as a result of Section 280G of the Code.
(hj) There are no pending or, All Company Benefit Plans subject to the Knowledge laws of GFI, threatened material claims in respect of or relating to any jurisdiction outside of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
United States (i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged have been maintained in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) No GFI Benefit Plan provides benefits, including death or medical benefits (whether or not insured), accordance with respect to current or former employees or directors of GFI or any GFI Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by all applicable Lawrequirements, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA)if they are intended to qualify for special tax treatment, meet all requirements for such treatment, and (iii) deferred compensation benefits accrued if they are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiaryappropriate, based upon reasonable actuarial assumptions.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as No amount has been paid by the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(l) With respect to each GFI Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI Company or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): (i) all material employer its ERISA Affiliates, and employee contributions no amount is expected to each Foreign GFI Benefit Plan required by Law or be paid by the terms Company or any of such Foreign GFI Benefit Plan have been madeits ERISA Affiliates, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according which would be subject to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none provisions of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l162(m) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan Code such that is all or a defined benefit pension planpart of such payments would not be deductible by the payor.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Cole Kenneth Productions Inc), Merger Agreement (Cole Kenneth Productions Inc)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a) of the GFI Disclosure Letter contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangement, and each other material employee benefit plan, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of the GFI material Benefit Plans, GFI the Company has delivered or made available to Parent accurate and complete copies of each of the following documents: (i) the GFI current plan document for each such Benefit Plan governing documentation (including all amendments thereto); , or if there is no written plan document, a written description thereof, (ii) the most recent annual report and actuarial report, if required under ERISA or the Code or any other applicable Law, for the most recent plan year; (iii) the most recent Summary Plan Descriptionsummary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement Contract (including all amendments thereto) and the most recent latest financial statements with respect to the reporting period ended most recently preceding the date thereof; , and (v) the most recent determination letter or opinion letter received from the IRS with respect to each GFI Benefit Plan that is intended to be qualified under Section 401(a) of the Code. Section 4.14(a) of the Company Disclosure Letter contains an accurate and complete list of each material Benefit Plan in effect as of the date of this Agreement.
(cb) In Except for matters that, individually or in the past six yearsaggregate, neither GFI have not had and would not reasonably be expected to have a Material Adverse Effect, (i) no liability under Title IV of ERISA has been incurred by the Company or any ERISA Affiliate of the Company that has not been satisfied in full when due, and no condition exists that presents a risk to the Company or any ERISA Affiliate of the Company of incurring a liability under Title IV of ERISA or similar provisions of non-U.S. Law, (ii) no Benefit Plan subject to the minimum funding requirements of Section 302 of ERISA or any trust established thereunder has failed to meet such minimum funding standards (as described in Section 302 of ERISA), whether or not waived, as of the last day of the most recent fiscal year of such Benefit Plan ended prior to the date of this Agreement, and (iii) all contributions required to be made to any Benefit Plan by applicable Law and the terms of such Benefit Plan, and all premiums due or payable with respect to insurance policies funding any Benefit Plan, for any period through the Closing Date, have been timely made or paid in full, or, to the extent not required to be made or paid on or before the Closing Date, have been fully reflected in line items on the applicable financial statements of the Company or Company Subsidiary, as applicable. Neither the Company nor any ERISA Affiliate has maintained of the Company maintains or contributed to or was required to contribute contributes to any plan or arrangement that is or was (i) subject to Section 412 Multiemployer Plan and neither the Company nor any ERISA Affiliate of the Code Company has incurred or Section 302 of has any reason to believe it has incurred or will incur any withdrawal liability under Title IV of ERISA, (ii. No Benefit Plan that is an “employee welfare benefit plan” under Section 3(2) of ERISA is a “multiple employer welfare arrangement arrangement” within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(dc) Each GFI Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter or opinion letter from the IRS IRS, on which it can currently rely, as to its qualification and, to the Knowledge of GFIthe Company as of the date of this Agreement, no event has occurred that could reasonably be expected to result in disqualification of such GFI Benefit Plan.
(ed) Each Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect, (i) each of the GFI Benefit Plans has been maintained, operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the CodeCode and (ii) no “disqualified person” as described in Section 4975 of the Code or “party in interest” as defined in Section 3(14) of ERISA has engaged in any prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code involving the assets of any Benefit Plan for which an exemption is not available.
(fe) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution of this Agreement nor the The consummation of the Transactions transactions contemplated by this Agreement will (either alone or together with any other event) not (i) cause any payment (whether of severance pay or otherwise) to become due to entitle any current or former director, officer, employee or director agent of GFI the Company or a GFI Subsidiaryany Company Subsidiary to any material severance pay, unemployment compensation or any other payment, (ii) cause an accelerate the time of payment or vesting, or materially increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of due to any compensation or benefits payable to or in respect of any such current or former director, officer, employee or director of GFI or a GFI Subsidiaryagent, (iii) cause the Company to transfer or set aside any individual assets to accrue or receive additional benefits, services or accelerated rights to payment of fund any benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under “disqualified individual” receiving any “excess parachute payment” (each such term as defined in Section 280G of the Code), or (v) limit or restrict the right to amend, terminate or transfer the assets of any Benefit Plan on or following the Closing.
(h) There are no pending or, to the Knowledge of GFI, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(jf) No GFI Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former directors, officers, employees or directors agents of GFI the Company or any GFI Company Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI the Company or a GFI Subsidiary Company Subsidiary, or (iv) benefits the full costs of which are borne by the current or former director, officer, employee or director agent or his or her beneficiary.
(kg) Each stock option issued since January 1Except for matters that, 2005 individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect, there are no pending or, to the Knowledge of the Company, threatened claims by or on behalf of any of the Benefit Plans, by any employee or beneficiary covered under any Benefit Plan or otherwise involving any Benefit Plan, and no audit or other Proceeding is pending or, to the Knowledge of the Company, threatened or anticipated.
(h) Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect, all Benefit Plans subject to the Laws of any jurisdiction outside of the United States (i) have been established, maintained and administered in accordance with respect all applicable Laws, (ii) if they are required to GFI Common Stock was granted with a perbe registered have been registered and if they are intended to qualify for special tax treatment meet all requirements for such treatment, and (iii) if they are intended to be funded or book-share exercise reserved are fully funded or base pricebook-reserved, as appropriate, based upon reasonable actuarial assumptions and applicable Law.
(i) Since December 31, 2017 until the case may bedate of this Agreement, the Company has not less granted any material increase (determined with reference to the compensation paid to the individuals involved) in, or accelerated the vesting or payment of, the compensation or benefits of any director, officer, employee or consultant of the Company or any Company Subsidiary, other than the fair market value of a share of GFI Common Stock (i) as required by any Benefit Plan as currently in effect on the date of grant.
(l) With respect to each GFI Benefit Plan established this Agreement or maintained outside of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): (i) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law or by the terms of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) increases in base salaries and target bonuses to non-executive employees, non-executive officers and agents in the fair market value ordinary course of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together business consistent with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension planpast practice.
Appears in 2 contracts
Samples: Merger Agreement (Gebr. Knauf Verwaltungsgesellschaft Kg), Agreement and Plan of Merger (Usg Corp)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(aAs soon as practicable (but not later than 20 Business Days) after the date hereof, the Company shall provide Parent with a schedule that sets forth a complete and correct list of the GFI Disclosure Letter contains Company Benefit Plans. With respect to each such Company Benefit Plan, on or before the date such schedule is provided, the Company shall provide to Parent a true complete and complete list correct copy of each material employmentsuch Company Benefit Plan, bonusif written, deferred compensation, incentive compensation, stock purchase, stock option, retention, change or a description of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangementsuch Company Benefit Plan if not written, and each other material employee benefit planto the extent applicable, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFIall trust agreements, insurance contracts or other funding arrangements, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of the GFI Benefit Plans, GFI has delivered or made available to Parent complete copies of each of the following documents: (i) the GFI Benefit Plan governing documentation (including all amendments thereto); (ii) the annual report and actuarial report, if required under ERISA or the Code or any Law, for the most recent plan year; actuarial and trust report for both ERISA funding and financial statement purposes, (iii) the most recent Summary Form 5500 with all attachments required to have been filed with the IRS or the Department of Labor or any similar report filed with any comparable governmental authority in any non-U.S. jurisdiction having jurisdiction over any Company Benefit Plan Descriptionand all schedules thereto, together with each Summary of Material Modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereof; and (v) the most recent IRS determination letter letter, (v) all current summary plan descriptions, (vi) all material communications received from or sent to the IRS with respect IRS, the Pension Benefit Guaranty Corporation or the Department of Labor, (vii) the most recent actuarial study of any pension, disability, post-employment life or medical benefits provided under any such Company Benefit Plan, (viii) all current employee handbooks and manuals, (ix) statements or other communications regarding withdrawal or other multiemployer plan liabilities (or similar liabilities pertaining to each GFI any non-U.S. employee benefit plan sponsored by the Company or any Company Subsidiary, if any), (x) all amendments and modifications to any such Company Benefit Plan or related document and (xi) in the case of any such Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code.
(c) In the past six years, neither GFI nor any ERISA Affiliate has maintained or contributed to or was required to contribute to any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge of GFI, no event has occurred that could reasonably be expected to result in disqualification of such GFI Benefit Plan.
(e) Each of the GFI Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code.
(f) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution of this Agreement nor the consummation of the Transactions will (either alone or together with any other event) (i) cause any payment (whether of severance pay or otherwise) to become due to any current or former employee or director of GFI or a GFI Subsidiary, (ii) cause an increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI Subsidiary, (iii) cause any individual to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under Section 280G of the Code.
(h) There are no pending or, to the Knowledge of GFI, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) No GFI Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of GFI or any GFI Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(l) With respect to each GFI Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing whose employment is principally outside of the U.S. United States, information that is substantially comparable (a “Foreign GFI Benefit Plan”): (itaking into account differences arising from differences in applicable law and practices) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law or by the terms of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan information required to be registered has been registered and has been maintained provided in good standing with applicable regulatory authorities (including tax authoritiesthe foregoing subclauses of this Section 3.19(a). Section 2.16(l) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension plan.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Verizon Communications Inc), Merger Agreement (Mci Inc)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a4.14(a) of the GFI CME Holdings Disclosure Letter contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension pension, or retirement plan, program, trust, agreement or arrangement, and each other material employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement other than any Multiemployer Plan (collectively, the “GFI CME Holdings Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFICME Holdings, (ii) any GFI CME Holdings Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, employee or director or member of GFI CME Holdings or any GFI CME Holdings Subsidiary.
(b) With respect to each of the GFI CME Holdings Benefit Plans, GFI CME Holdings has delivered or made available to Parent CBOT Holdings complete copies of each of the following documents: (i) the GFI CME Holdings Benefit Plan governing documentation (including all amendments thereto); (ii) the annual report and actuarial report, if required under ERISA or the Code or any LawCode, for the most recent last three plan yearyears ending prior to the date hereof; (iii) the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI CME Holdings Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent latest financial statements with respect to the reporting period ended most recently preceding the date thereof; (v) all contracts with respect to which CME Holdings, any CME Holdings Subsidiary or any CME Holdings ERISA Affiliate has any liability, including insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements; and (vvi) the most recent determination letter received from the IRS with respect to each GFI CME Holdings Benefit Plan that is intended to be qualified under Section 401(a) of the Code.
(c) In the past six years, neither GFI nor No liability under Title IV of ERISA has been incurred by CME Holdings or any CME Holdings ERISA Affiliate that has maintained not been satisfied in full when due, and no condition exists that presents a material risk to CME Holdings or contributed any CME Holdings ERISA Affiliate of incurring a liability under such Title. To the extent this representation applies to Sections 4064, 4069 or 4204 of Title IV of ERISA, it is made not only with respect to CME Holdings Benefit Plans but also with respect to any employee CME Holdings Benefit Plan, program, agreement or arrangement subject to Title IV of ERISA to which CME Holdings or any CME Holdings ERISA Affiliate made, or was required to contribute to any plan or arrangement that is or was (i) make, contributions during the five-year period ending on the Closing. No CME Holdings Benefit Plan subject to the minimum funding requirements of Section 412 of the Code or Section 302 of Title IV of ERISA, ERISA or any trust established thereunder has incurred any “accumulated funding deficiency” (ii) a multiple employer welfare arrangement within the meaning of as defined in Section 3(40) 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such CME Holdings Benefit Plan ended prior to the date hereof, and all contributions required to be made with respect thereto (iiiwhether pursuant to the terms of any such CME Holdings Benefit Plan or otherwise) on or prior to the date hereof have been timely made. Any cessation of benefit accruals under a multiemployer plan within CME Holdings Benefit Plan was effected in accordance with any applicable requirements of ERISA and the meaning of Code, including (to the extent applicable) Section 3(37) or 4001(a)(3204(h) of ERISA. Neither CME Holdings nor any CME Holdings ERISA Affiliate has any reasonable expectation of liability with respect to any Multiemployer Plan.
(d) Each GFI CME Holdings Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge knowledge of GFICME Holdings, no event has occurred that could reasonably be expected to result in disqualification of such GFI CME Holdings Benefit Plan.
(e) Each of the GFI CME Holdings Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Lawslaws, including ERISA and the Code.
(f) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution of this Agreement nor the The consummation of the Transactions transactions contemplated by this Agreement will (either alone or together with any other event) not (i) cause any payment (whether of severance pay or otherwise) to become due to entitle any current or former employee or director of GFI CME Holdings or a GFI Subsidiaryany CME Holdings Subsidiary to severance pay, unemployment compensation or any other payment, (ii) cause an accelerate the time of payment or vesting, or increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of due to any compensation or benefits payable to or in respect of any such current or former employee or director of GFI or a GFI Subsidiary, (iii) cause result in any individual to accrue prohibited transaction described in Section 406 of ERISA or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 4975 of the Code for which an exemption is not available.
(g) With respect to each CME Holdings Benefit Plan that is funded wholly or (v) result in payments partially through an insurance policy, neither CME Holdings nor any CME Holdings Subsidiary has any current liability under any such insurance policy in the nature of a retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring prior to the GFI Benefit Plans which would not be deductible under Section 280G of the CodeClosing.
(h) There are no pending or, to the Knowledge knowledge of GFICME Holdings, threatened material claims in respect by or on behalf of or relating to any of the GFI CME Holdings Benefit Plans, by any employee or beneficiary covered under any GFI CME Holdings Benefit Plan or otherwise involving any GFI CME Holdings Benefit Plan (other than routine claims for benefits).
(i) Neither GFICME Holdings nor any CME Holdings Subsidiary is a party to any agreement, contract or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code or in respect of which a deduction has been or could be disallowed pursuant to Section 162(m) of the Code. No current or former employee or director of CME Holdings or any CME Holdings Subsidiary is entitled to receive any additional payment from CME Holdings or any CME Holdings Subsidiary or the Surviving Entity by reason of the excise tax required by Section 4999(a) of the Code being imposed on such person by reason of the transactions contemplated by this Agreement.
(j) Neither CME Holdings, any GFI CME Holdings Subsidiary, CME Holdings ERISA Affiliate, any GFI CME Holdings Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(jk) No GFI “leased employees,” as that term is defined in Section 414(n) of the Code, perform services for CME Holdings, any CME Holdings Subsidiary or any CME Holdings ERISA Affiliate. Neither CME Holdings, any CME Holdings Subsidiary or any CME Holdings ERISA Affiliate has used the services of workers provided by third party contract labor suppliers, temporary employees, such “leased employees,” or individuals who have provided services as independent contractors to an extent that would reasonably be expected to result in the disqualification of any CME Holdings Benefit Plan or the imposition of penalties or excise taxes with respect to any Plan by the IRS, the Department of Labor, or any other Governmental Entity.
(l) Neither CME Holdings, any CME Holdings Subsidiary nor any CME Holdings ERISA Affiliate is a party to any agreement or understanding, whether written or unwritten, with the IRS, the Department of Labor or the Pension Benefit Guaranty Corporation.
(m) No representations or communications, oral or written, with respect to the participation, eligibility for benefits, vesting, benefit accrual or coverage under any CME Holdings Benefit Plan have been made to employees, directors or agents (or any of their representatives or beneficiaries) of CME Holdings, any CME Holdings Subsidiary or any CME Holdings ERISA Affiliate that are not in accordance with the terms and conditions of CME Holdings Benefit Plans.
(n) No CME Holdings Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of GFI CME Holdings or any GFI CME Holdings Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Lawlaw, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI CME Holdings or a GFI CME Holdings Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary.
(ko) With respect to each of CME Holdings Benefit Plan, the provisions of Section 4980B(f) of the Code, Section 601 et seq. of ERISA, and any similar local law have been complied with in all material respects.
(p) Each stock option or stock appreciation right issued since January 1, 2005 with respect to GFI CME Holdings Class A Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI CME Holdings Class A Common Stock on the date of grant.
(lq) With respect to each GFI CME Holdings Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI CME Holdings or any GFI CME Holdings Subsidiary residing outside of the U.S. (a “Foreign GFI CME Holdings Benefit Plan”): (i) all material employer and employee contributions to each Foreign GFI CME Holdings Benefit Plan required by Law law or by the terms of such Foreign GFI CME Holdings Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI CME Holdings Benefit Plan and Plan, the liability of each insurer for any Foreign GFI CME Holdings Benefit Plan funded through insurance or the book reserve established for any Foreign GFI CME Holdings Benefit Plan, together with any accrued contributions, is not materially less than sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI CME Holdings Benefit Plan and none of the Transactions no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI CME Holdings Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension plan.
Appears in 2 contracts
Samples: Merger Agreement (Chicago Mercantile Exchange Holdings Inc), Merger Agreement (Cbot Holdings Inc)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a) of the GFI Disclosure Letter contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangement, and each other material employee benefit plan, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of the GFI material Ecolab Benefit Plans, GFI Ecolab has delivered or made available to Parent Nalco (to the extent requested by Nalco prior to the date of this Agreement) correct and complete copies of each of the following documents: (i) the GFI such Ecolab Benefit Plan governing documentation (including all material amendments thereto); , (ii) the annual report and actuarial report, if required under ERISA or the Code or any LawCode, for the most recent plan year; year ending prior to the date hereof, (iii) the most recent Summary Plan Descriptionsummary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Ecolab Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement Contract (including all amendments thereto) and the most recent latest financial statements with respect to the reporting period ended most recently preceding the date thereof; and , (v) the most recent determination letter received from the IRS with respect to each GFI Ecolab Benefit Plan that is intended to be qualified under Section 401(a) of the Code and (vi) all material notices with respect to any Ecolab Benefit Plan that were given by any Governmental Authority to Ecolab, any Ecolab Subsidiary or any ERISA Affiliate or any Ecolab Benefit Plan in the last three plan years ending prior to the date of this Agreement or in the period ending on the date of this Agreement.
(b) Except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have an Ecolab Material Adverse Effect, (i) no liability under Title IV of ERISA has been incurred by Ecolab or any ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a risk to Ecolab or any ERISA Affiliate of incurring a liability under Title IV of ERISA, in each case, with respect to any Ecolab U.S. Benefit Plan, (ii) no Ecolab U.S. Benefit Plan subject to the minimum funding requirements of Section 302 of ERISA or any trust established thereunder has failed to meet such minimum funding standards (as described in Section 302 of ERISA), whether or not waived, as of the last day of the most recent fiscal year of such Ecolab Benefit Plan ended prior to the date of this Agreement, (iii) with respect to each of the Ecolab U.S. Benefit Plans that is subject to Title IV of ERISA, the present value of projected benefit obligations under such Ecolab U.S. Benefit Plan, as determined by the Ecolab U.S. Benefit Plan's actuary based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such actuary, did not, as of its latest valuation date, exceed the then-current value of the assets of such Ecolab Benefit Plan allocable to such projected benefit obligations and (iv) any cessation of benefit accruals under an Ecolab Benefit Plan was effected in accordance with any applicable requirements of ERISA and the Code, including (to the extent applicable) Section 204(h) of ERISA. Neither Ecolab nor any ERISA Affiliate maintains or contributes to any Multiemployer Plan and, except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have an Ecolab Material Adverse Effect, neither Ecolab nor any ERISA Affiliate has incurred or has any reason to believe it has incurred or will incur any withdrawal liability under Title IV of ERISA.
(c) In the past six years, neither GFI nor any ERISA Affiliate has maintained or contributed to or was required to contribute to any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Ecolab U.S. Benefit Plan intended to be “"qualified” " within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge knowledge of GFIEcolab as of the date of this Agreement, no event has occurred that could reasonably be expected to result in disqualification of such GFI Ecolab U.S. Benefit Plan.
(ed) Each Except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have an Ecolab Material Adverse Effect, each of the GFI Ecolab U.S. Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code.
(fe) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution of this Agreement nor the The consummation of the Transactions transactions contemplated by this Agreement will (either alone or together with any other event) not (i) cause any payment (whether of severance pay or otherwise) to become due to entitle any current or former director, officer, employee or director agent of GFI Ecolab or a GFI Subsidiaryany Ecolab Subsidiary to any material severance pay, unemployment compensation or any other payment, (ii) cause an accelerate the time of payment or vesting, or materially increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable due to or in respect of any such current or former director, officer, employee or director of GFI agent or a GFI Subsidiary, (iii) cause result in any individual to accrue material prohibited transaction described in Section 406 of ERISA or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 4975 of the Code or (v) result in payments under any of the GFI Benefit Plans for which would an exemption is not be deductible under Section 280G of the Codeavailable.
(hf) There are no pending orExcept for matters that, to individually and in the Knowledge of GFIaggregate, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could have not had and would not reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) No GFI have an Ecolab Material Adverse Effect, no Ecolab Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former directors, officers, employees or directors agents of GFI Ecolab or any GFI Ecolab Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “"employee pension plan” " (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI Ecolab or a GFI an Ecolab Subsidiary or (iv) benefits the full costs of which are borne by the current or former director, officer, employee or director agent or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(lg) With respect to each GFI material Ecolab Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI Ecolab or any GFI Ecolab Subsidiary residing outside of the U.S. (a “"Foreign GFI Ecolab Benefit Plan”): "), except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have an Ecolab Material Adverse Effect, (i) all material employer and employee contributions to each Foreign GFI Ecolab Benefit Plan required by Law or by the terms of such Foreign GFI Ecolab Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; , (ii) the fair market value of the assets of each funded Foreign GFI Ecolab Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan intended to be funded through insurance or the book reserve established for any Foreign GFI Benefit Planreserved is fully funded or book reserved, together with any accrued contributionsas appropriate, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the based on reasonable actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Ecolab Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities authorities.
(including tax authorities). Section 2.16(lh) Except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have an Ecolab Material Adverse Effect, there are no pending or, to the knowledge of Ecolab, threatened claims by or on behalf of any of the GFI Disclosure Letter separately identifies each Foreign GFI Ecolab Benefit Plans, by any employee or beneficiary covered under any Ecolab Benefit Plan or otherwise involving any Ecolab Benefit Plan.
(i) Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have an Ecolab Material Adverse Effect, each Ecolab Benefit Plan and each employment, management, severance, consulting, relocation, repatriation, expatriation or similar agreement between Ecolab or any Ecolab Subsidiary and any employee, consultant or independent contractor that provides deferred compensation subject to Section 409A of the Code is a defined benefit pension planin compliance with applicable guidance under Section 409A of the Code in form and operation.
Appears in 1 contract
Samples: Merger Agreement (Ecolab Inc)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a3.16(a) of the GFI Disclosure Letter contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangement, and each other material employee benefit plan, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary. Not more than 60 days after the date hereof, GFI shall revise Section 3.16(a) of the GFI Disclosure Letter to identify (by marking them with an asterisk) those GFI Benefit Plans that are maintained exclusively by the CME Retained Subsidiaries solely for the benefit of Continuing Employees and to identify (by marking them with a cross) those GFI Benefit Plans maintained in whole or part for the benefit of any Continuing Employee.
(b) With respect to each of the GFI Benefit Plans, GFI has delivered or made available to Parent CME complete copies of each of the following documents: (i) the GFI Benefit Plan governing documentation (including all amendments thereto); (ii) the annual report and actuarial report, if required under ERISA or the Code or any Law, for the most recent plan year; (iii) the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereof; and (v) the most recent determination letter received from the IRS with respect to each GFI Benefit Plan that is intended to be qualified under Section 401(a) of the Code.
(c) In the past six years, neither GFI nor any ERISA Affiliate has maintained or contributed to or was required to contribute to any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge of GFI, no event has occurred that could reasonably be expected to result in disqualification of such GFI Benefit Plan.
(e) Each of the GFI Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code.
(f) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution of this Agreement nor the consummation of the Transactions will (either alone or together with any other event) (i) cause any payment (whether of severance pay or otherwise) to become due to any current or former employee or director of GFI or a GFI Subsidiary, (ii) cause an increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI Subsidiary, (iii) cause any individual to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under Section 280G of the Code.
(h) There are no pending or, to the Knowledge of GFI, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) No GFI Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of GFI or any GFI Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(l) With respect to each GFI Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): (i) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law or by the terms of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l3.16(l) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension plan.
Appears in 1 contract
Samples: Merger Agreement (GFI Group Inc.)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a) of the GFI Disclosure Letter contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangement, and each other material employee benefit plan, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of material Benefit Plan, the GFI Benefit Plans, GFI Company has delivered or made available to Parent accurate and complete copies of each of the following documents: (i) the GFI such Benefit Plan governing documentation (including all amendments thereto); , or if there is no written plan document, a written description thereof, (ii) the most recent annual report (Series 5500 and actuarial reportall schedules thereto), if required under ERISA or ERISA, the Code or any other applicable Law, for the most recent plan year; (iii) the most recent Summary Plan Descriptionsummary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust trust, insurance or any third party funding vehicle, the trust or other funding Contract, agreement or policy, (including all amendments thereto) and the latest financial statements with respect to the reporting period ended most recently preceding the date thereof, (v) any actuarial assessments, aggregate claims experience for the most recent financial statements thereof; plan year ending prior to the date of this Agreement, and assessment of incurred but not reported claims under any self-insured Benefit Plan, (vvi) the most recent determination letter or opinion letter received from the IRS with respect to each GFI Benefit Plan that is intended to be qualified under Section 401(a) of the Code, (vii) all material written Contracts relating to each Benefit Plan, including fidelity or ERISA bonds, fiduciary liability insurance, administrative service agreements, group annuity Contracts and group insurance Contracts and (viii) all material notices with respect to any Benefit Plan that were given by any Governmental Authority to the Company, any of its Subsidiaries or any ERISA Affiliate of the foregoing or any Benefit Plan in the last three plan years. Section 5.14(a) of the Company Disclosure Letter contains an accurate and complete list of each material Benefit Plan and Multiemployer Plan in effect as of the date of this Agreement.
(cb) In the past six yearsOther than with respect to any Multiemployer Plan, neither GFI the Company nor any ERISA Affiliate has maintained (i) incurred any liability under Title IV of ERISA that has not been satisfied in full when due, and no condition exists that presents a risk to the Company or any ERISA Affiliate of the Company of incurring a liability under Title IV of ERISA or similar provisions of non-U.S. Law or (ii) ever sponsored, maintained, contributed to or was required had any obligation to contribute to any a plan or arrangement that is or was (i) subject to Title IV of ERISA or the minimum funding standards of Section 302 of ERISA or Section 412 of the Code Code, or maintained in connection with any trust described in Section 302 501(c)(9) of the Code. All contributions required to be made to any Benefit Plan or any Multiemployer Plan by applicable Law and the terms of such Benefit Plan or Multiemployer Plan, and all premiums due or payable with respect to insurance policies funding any Benefit Plan, and all accrued liabilities for any self-insured Benefit Plan, for any period through the Closing Date, have been timely made, paid or accrued in full, or, to the extent not required to be made, paid or accrued on or before the Closing Date, have been fully reflected in line items on the applicable financial statements of the Company or its Subsidiaries, as applicable. Neither the Company nor any ERISA Affiliate of the Company has incurred or has any reason to believe it has incurred any withdrawal liability under Title IV of ERISA, (ii. No Benefit Plan that is an “employee welfare benefit plan” under Section 3(2) of ERISA is a “multiple employer welfare arrangement arrangement” within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(dc) Each GFI Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter or opinion letter from the IRS IRS, on which it can currently rely, as to its qualification qualification, and, to the Knowledge knowledge of GFIthe Company, as of the date of this Agreement, no event has occurred that could reasonably be expected to result in disqualification adversely affect qualification of such GFI Benefit Plan.
(ed) Each of the GFI Benefit Plans has been maintained, operated and administered in all material respects in accordance with its terms and in compliance with all applicable Laws, including ERISA and the Code, and no “disqualified person” as described in Section 4975 of the Code or “party in interest” as defined in Section 3(14) of ERISA has engaged in any material non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code involving any Benefit Plan. As of the date of this Agreement, there are no material Proceedings pending, or to the Company’s knowledge, threatened relating to any Benefit Plan or the assets or fiduciaries thereof (other than routine claims in the ordinary course of business for benefits provided for by such Benefit Plan), and there are no material outstanding liabilities for Taxes, penalties or fees with respect to any Benefit Plan.
(fe) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 5.14(e) of the Xxxxxxxx-Xxxxx Act. Each transfer Company Disclosure Letter includes an accurate and complete list of funds by GFI all change in control, severance and similar agreements to which any officer of the Company or any GFI Subsidiary to any of their respective employees that was deemed its Subsidiaries is a loan was when made (and at all times since has been) properly treated by GFI and party as of the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution date of this Agreement nor and information in reasonable detail regarding all Equity Rights held by such officer as of the date of this Agreement. The consummation of the Contemplated Transactions will (either alone or together with any other event) not (i) cause any payment (whether of severance pay or otherwise) to become due to entitle any current or former director, officer, employee or director agent of GFI the Company or a GFI Subsidiaryany of its Subsidiaries to any material severance pay, unemployment compensation or any other payment, (ii) cause an except as otherwise provided in this Agreement, accelerate the time of payment or vesting, or materially increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of due to any compensation or benefits payable to or in respect of any such current or former director, officer, employee or director of GFI agent or a GFI Subsidiary, (iii) cause the Company to transfer or set aside any individual assets to accrue or receive additional benefits, services or accelerated rights to payment of fund any benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under “disqualified individual” receiving any “excess parachute payment” (each such term as defined in Section 280G of the Code). No Benefit Plan provides for a gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code or otherwise.
(hf) There are no pending or, to the Knowledge of GFI, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI No Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) No GFI Benefit Multiemployer Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former directors, officers, employees or directors agents of GFI the Company or any GFI Subsidiary of its Subsidiaries beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the accounting books and records of GFI or a GFI Subsidiary the Company and its Subsidiaries or (iv) benefits the full costs of which are borne by the current or former director, officer, employee or director agent or his or her their beneficiary.
(kg) Each stock option issued since January 1Neither the Company nor any of its ERISA Affiliates has now, 2005 with respect or has had, the obligation to GFI Common Stock was granted with a per-share exercise maintain, establish, sponsor, participate in or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(l) With respect contribute to each GFI any Benefit Plan established or maintained other similar arrangement that is subject to any applicable Law of any jurisdiction outside of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): (i) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law or by the terms of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension planUnited States.
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a) of the GFI Disclosure Letter contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangement, and each other material employee benefit plan, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of the GFI material Ecolab Benefit Plans, GFI Ecolab has delivered or made available to Parent Nalco (to the extent requested by Nalco prior to the date of this Agreement) correct and complete copies of each of the following documents: (i) the GFI such Ecolab Benefit Plan governing documentation (including all material amendments thereto); , (ii) the annual report and actuarial report, if required under ERISA or the Code or any LawCode, for the most recent plan year; year ending prior to the date hereof, (iii) the most recent Summary Plan Descriptionsummary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Ecolab Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement Contract (including all amendments thereto) and the most recent latest financial statements with respect to the reporting period ended most recently preceding the date thereof; and , (v) the most recent determination letter received from the IRS with respect to each GFI Ecolab Benefit Plan that is intended to be qualified under Section 401(a) of the Code and (vi) all material notices with respect to any Ecolab Benefit Plan that were given by any Governmental Authority to Ecolab, any Ecolab Subsidiary or any ERISA Affiliate or any Ecolab Benefit Plan in the last three plan years ending prior to the date of this Agreement or in the period ending on the date of this Agreement.
(b) Except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have an Ecolab Material Adverse Effect, (i) no liability under Title IV of ERISA has been incurred by Ecolab or any ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a risk to Ecolab or any ERISA Affiliate of incurring a liability under Title IV of ERISA, in each case, with respect to any Ecolab U.S. Benefit Plan, (ii) no Ecolab U.S. Benefit Plan subject to the minimum funding requirements of Section 302 of ERISA or any trust established thereunder has failed to meet such minimum funding standards (as described in Section 302 of ERISA), whether or not waived, as of the last day of the most recent fiscal year of such Ecolab Benefit Plan ended prior to the date of this Agreement, (iii) with respect to each of the Ecolab U.S. Benefit Plans that is subject to Title IV of ERISA, the present value of projected benefit obligations under such Ecolab U.S. Benefit Plan, as determined by the Ecolab U.S. Benefit Plan’s actuary based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such actuary, did not, as of its latest valuation date, exceed the then-current value of the assets of such Ecolab Benefit Plan allocable to such projected benefit obligations and (iv) any cessation of benefit accruals under an Ecolab Benefit Plan was effected in accordance with any applicable requirements of ERISA and the Code, including (to the extent applicable) Section 204(h) of ERISA. Neither Ecolab nor any ERISA Affiliate maintains or contributes to any Multiemployer Plan and, except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have an Ecolab Material Adverse Effect, neither Ecolab nor any ERISA Affiliate has incurred or has any reason to believe it has incurred or will incur any withdrawal liability under Title IV of ERISA.
(c) In the past six years, neither GFI nor any ERISA Affiliate has maintained or contributed to or was required to contribute to any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Ecolab U.S. Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge knowledge of GFIEcolab as of the date of this Agreement, no event has occurred that could reasonably be expected to result in disqualification of such GFI Ecolab U.S. Benefit Plan.
(ed) Each Except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have an Ecolab Material Adverse Effect, each of the GFI Ecolab U.S. Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code.
(fe) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution of this Agreement nor the The consummation of the Transactions transactions contemplated by this Agreement will (either alone or together with any other event) not (i) cause any payment (whether of severance pay or otherwise) to become due to entitle any current or former director, officer, employee or director agent of GFI Ecolab or a GFI Subsidiaryany Ecolab Subsidiary to any material severance pay, unemployment compensation or any other payment, (ii) cause an accelerate the time of payment or vesting, or materially increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable due to or in respect of any such current or former director, officer, employee or director of GFI agent or a GFI Subsidiary, (iii) cause result in any individual to accrue material prohibited transaction described in Section 406 of ERISA or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 4975 of the Code or (v) result in payments under any of the GFI Benefit Plans for which would an exemption is not be deductible under Section 280G of the Codeavailable.
(hf) There are no pending orExcept for matters that, to individually and in the Knowledge of GFIaggregate, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could have not had and would not reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) No GFI have an Ecolab Material Adverse Effect, no Ecolab Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former directors, officers, employees or directors agents of GFI Ecolab or any GFI Ecolab Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI Ecolab or a GFI an Ecolab Subsidiary or (iv) benefits the full costs of which are borne by the current or former director, officer, employee or director agent or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(lg) With respect to each GFI material Ecolab Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI Ecolab or any GFI Ecolab Subsidiary residing outside of the U.S. (a “Foreign GFI Ecolab Benefit Plan”): ), except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have an Ecolab Material Adverse Effect, (i) all material employer and employee contributions to each Foreign GFI Ecolab Benefit Plan required by Law or by the terms of such Foreign GFI Ecolab Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; , (ii) the fair market value of the assets of each funded Foreign GFI Ecolab Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan intended to be funded through insurance or the book reserve established for any Foreign GFI Benefit Planreserved is fully funded or book reserved, together with any accrued contributionsas appropriate, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the based on reasonable actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Ecolab Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities authorities.
(including tax authorities). Section 2.16(lh) Except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have an Ecolab Material Adverse Effect, there are no pending or, to the knowledge of Ecolab, threatened claims by or on behalf of any of the GFI Disclosure Letter separately identifies each Foreign GFI Ecolab Benefit Plans, by any employee or beneficiary covered under any Ecolab Benefit Plan or otherwise involving any Ecolab Benefit Plan.
(i) Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have an Ecolab Material Adverse Effect, each Ecolab Benefit Plan and each employment, management, severance, consulting, relocation, repatriation, expatriation or similar agreement between Ecolab or any Ecolab Subsidiary and any employee, consultant or independent contractor that provides deferred compensation subject to Section 409A of the Code is a defined benefit pension planin compliance with applicable guidance under Section 409A of the Code in form and operation.
Appears in 1 contract
Samples: Merger Agreement (Nalco Holding CO)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a) of the GFI Disclosure Letter contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangement, and each other material employee benefit plan, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of the GFI material Nalco Benefit Plans, GFI Nalco has delivered or made available to Parent Ecolab (to the extent requested by Ecolab prior to the date of this Agreement) correct and complete copies of each of the following documents: (i) the GFI such Nalco Benefit Plan governing documentation (including all material amendments thereto); , (ii) the annual report and actuarial report, if required under ERISA or the Code or any LawCode, for the most recent plan year; year ending prior to the date hereof, (iii) the most recent Summary Plan Descriptionsummary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Nalco Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement Contract (including all amendments thereto) and the most recent latest financial statements with respect to the reporting period ended most recently preceding the date thereof; and , (v) the most recent determination letter received from the IRS with respect to each GFI Nalco Benefit Plan that is intended to be qualified under Section 401(a) of the Code and (vi) all material notices with respect to any Nalco Benefit Plan that were given by any Governmental Authority to Nalco, any Nalco Subsidiary or any ERISA Affiliate or any Nalco Benefit Plan in the last three plan years ending prior to the date of this Agreement or in the period ending on the date of this Agreement.
(b) Except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have a Nalco Material Adverse Effect, (i) no liability under Title IV of ERISA has been incurred by Nalco or any ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a risk to Nalco or any ERISA Affiliate of incurring a liability under Title IV of ERISA, in each case, with respect to any Nalco U.S. Benefit Plan, (ii) no Nalco U.S. Benefit Plan subject to the minimum funding requirements of Section 302 of ERISA or any trust established thereunder has failed to meet such minimum funding standards (as described in Section 302 of ERISA), whether or not waived, as of the last day of the most recent fiscal year of such Nalco Benefit Plan ended prior to the date of this Agreement, (iii) with respect to each of the Nalco U.S. Benefit Plans that is subject to Title IV of ERISA, the present value of projected benefit obligations under such Nalco U.S. Benefit Plan, as determined by the Nalco U.S. Benefit Plan's actuary based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such actuary, did not, as of its latest valuation date, exceed the then-current value of the assets of such Nalco Benefit Plan allocable to such projected benefit obligations and (iv) any cessation of benefit accruals under a Nalco Benefit Plan was effected in accordance with any applicable requirements of ERISA and the Code, including (to the extent applicable) Section 204(h) of ERISA. Neither Nalco nor any ERISA Affiliate maintains or contributes to any Multiemployer Plan and, except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have a Nalco Material Adverse Effect, neither Nalco nor any ERISA Affiliate has incurred or has any reason to believe it has incurred or will incur any withdrawal liability under Title IV of ERISA.
(c) In the past six years, neither GFI nor any ERISA Affiliate has maintained or contributed to or was required to contribute to any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Nalco U.S. Benefit Plan intended to be “"qualified” " within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge knowledge of GFINalco as of the date of this Agreement, no event has occurred that could reasonably be expected to result in disqualification of such GFI Nalco U.S. Benefit Plan.
(ed) Each Except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have a Nalco Material Adverse Effect, each of the GFI Nalco U.S. Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code.
(fe) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 4.15(e) of the XxxxxxxxNalco Disclosure Letter includes an accurate and complete list of all change in control, severance and similar agreements to which any Section 16 Officer of Nalco is a party as of the date hereof and information in reasonable detail regarding all Nalco Stock Options and Nalco Stock-Xxxxx ActBased Awards held by such Section 16 Officers as of the date hereof. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution of this Agreement nor the The consummation of the Transactions transactions contemplated by this Agreement will (either alone or together with any other event) not (i) cause any payment (whether of severance pay or otherwise) to become due to entitle any current or former director, officer, employee or director agent of GFI Nalco or a GFI Subsidiaryany Nalco Subsidiary to any material severance pay, unemployment compensation or any other payment, (ii) cause an accelerate the time of payment or vesting, or materially increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of due to any compensation or benefits payable to or in respect of any such current or former director, officer, employee or director of GFI agent or a GFI Subsidiary, (iii) cause result in any individual to accrue material prohibited transaction described in Section 406 of ERISA or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 4975 of the Code or (v) result in payments under any of the GFI Benefit Plans for which would an exemption is not be deductible under Section 280G of the Codeavailable.
(hf) There are no pending orExcept for matters that, to individually and in the Knowledge of GFIaggregate, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could have not had and would not reasonably be expected to give rise to have a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) No GFI Nalco Material Adverse Effect, no Nalco Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former directors, officers, employees or directors agents of GFI Nalco or any GFI Nalco Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “"employee pension plan” " (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI Nalco or a GFI Nalco Subsidiary or (iv) benefits the full costs of which are borne by the current or former director, officer, employee or director agent or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(lg) With respect to each GFI material Nalco Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI Nalco or any GFI Nalco Subsidiary residing outside of the U.S. (a “"Foreign GFI Nalco Benefit Plan”): "), except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have a Nalco Material Adverse Effect, (i) all material employer and employee contributions to each Foreign GFI Nalco Benefit Plan required by Law or by the terms of such Foreign GFI Nalco Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; , (ii) the fair market value of the assets of each funded Foreign GFI Nalco Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan intended to be funded through insurance or the book reserve established for any Foreign GFI Benefit Planreserved is fully funded or book reserved, together with any accrued contributionsas appropriate, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the based on reasonable actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Nalco Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities authorities.
(including tax authorities). Section 2.16(lh) Except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have a Nalco Material Adverse Effect, there are no pending or, to the knowledge of Nalco, threatened claims by or on behalf of any of the GFI Disclosure Letter separately identifies each Foreign GFI Nalco Benefit Plans, by any employee or beneficiary covered under any Nalco Benefit Plan or otherwise involving any Nalco Benefit Plan.
(i) Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Nalco Material Adverse Effect, each Nalco Benefit Plan and each employment, management, severance, consulting, relocation, repatriation, expatriation or similar agreement between Nalco or any Nalco Subsidiary and any employee, consultant or independent contractor that provides deferred compensation subject to Section 409A of the Code is a defined benefit pension planin compliance with applicable guidance under Section 409A of the Code in form and operation.
Appears in 1 contract
Samples: Merger Agreement (Ecolab Inc)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a3.14(a) of the GFI Company Disclosure Letter contains includes a true and complete list of each all material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangement, and each other material employee benefit plan, program, agreement or arrangement (collectively, the “GFI Employee Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of Employee Benefit Plan, the GFI Benefit Plans, GFI Company has delivered or made available to Parent a complete copies of each of the following documentscopy of: (i) the GFI Benefit Plan governing documentation (including all amendments thereto)each writing constituting a part of such Plan; (ii) the annual report most recent Annual Report (Form 5500 Series) and actuarial reportaccompanying schedule, if required under ERISA or the Code or any Law, for the most recent plan yearany; (iii) the most recent Summary Plan Description, together with each Summary of Material Modificationscurrent summary plan description and any material modifications thereto, if required under ERISA, and other booklets or information issued to participants and beneficiariesany; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent annual financial statements thereofand/or actuarial report, if any; and (v) the most recent determination letter received from the IRS with respect to IRS, if any.
(c) Section 3.14(c) of the Company Disclosure Letter identifies each GFI Benefit Plan that is intended to be a “qualified under Section 401(a) of the Code.
(c) In the past six years, neither GFI nor any ERISA Affiliate has maintained or contributed to or was required to contribute to any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Benefit Plan intended to be “qualifiedplan” within the meaning of Section 401(a) of the Code (“Qualified Plans”). The IRS has received issued a favorable determination letter from with respect to each Qualified Plan and the IRS as to its qualification andrelated trust that has not been revoked, to and the Knowledge Company knows of GFI, no event has existing circumstances and no events have occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Plan or the related trust. All material contributions required to be made to any Plan, and all material premiums due or payable with respect to insurance policies funding any Plan, for any period through the date hereof have been timely made or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the financial statements, to the extent required by GAAP. With respect to each Employee Benefit Plan, except as would not, individually or in the aggregate, reasonably be expected to result in disqualification of a Company Material Adverse Effect, (i) the Company and its Subsidiaries have complied, and are now in compliance with all Laws and regulations applicable to such GFI Benefit Plan.
(e) Each of the GFI Employee Benefit Plans and (ii) each Plan has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Codeterms.
(fd) Neither GFI nor any GFI Subsidiary No Employee Benefit Plan is a Multiemployer Plan or a plan that has made any loans to employees in violation two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 402 4063 of ERISA (a “Multiple Employer Plan”). None of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to Company and its Subsidiaries nor any of their respective ERISA Affiliates has, at any time during the last six years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan. None of the Company and its Subsidiaries nor any ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full. To the knowledge of the Company, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a material liability of the Company or any of its Subsidiaries following the Closing. The Company and its Subsidiaries have no liability for welfare benefits to former employees that was deemed a loan was when made (or beneficiaries or dependents thereof, except for health continuation coverage as required by Section 4980B of the Code or Part 6 of Title I of ERISA and at no expense to the Company and its Subsidiaries or for continuation of welfare benefits pursuant to an employment or severance arrangement for a period following termination of employment of no greater than three years. The Company has taken such actions as it deems necessary to reserve the right to amend, terminate or modify at any time all times since arrangements providing for retiree welfare coverage. Except as would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect, (i) None of the Company and its Subsidiaries nor any other person, including any fiduciary, has beenengaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the Employee Benefit Plans or their related trusts, the Company, any of its Subsidiaries or any person that the Company or any of its Subsidiaries has an obligation to indemnify, to any tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA and (ii) properly treated by GFI and there are no pending or, to the GFI Subsidiaries as such knowledge of the Company, threatened claims (other than claims for federal income tax purposesbenefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to Company’s knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Employee Benefit Plans, any fiduciaries thereof with respect to their duties to the Employee Benefit Plans or the assets of any of the trusts under any of the Employee Benefit Plans.
(ge) Neither the execution and delivery of this Agreement nor the consummation of the Transactions transactions contemplated hereby will (either alone or together in conjunction with any other event) (i) result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment (whether of severance pay or otherwise) to become due benefit to any current or former employee employee, officer or director of GFI the Company or any of its Subsidiaries, or result in any limitation on the right of the Company or any of its Subsidiaries to amend, merge, terminate or receive a GFI Subsidiaryreversion of assets from any Employee Benefit Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (ii) cause an increase whether in cash, in property, or in the amount form of compensation benefits) by the Company or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI Subsidiary, (iii) cause any individual to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of its Subsidiaries in connection with the GFI Benefit Plans which would not transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be deductible under an “excess parachute payment” within the meaning of Section 280G of the Code.
(hf) There are no pending orExcept as would not, to individually or in the Knowledge of GFIaggregate, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise result in a Company Material Adverse Effect, all Employee Benefit Plans subject to a civil liability under either Section 409 the Laws of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 any jurisdiction outside of the Code.
(j) No GFI Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of GFI or any GFI Subsidiary beyond their retirement or other termination of service, other than United States (i) coverage mandated solely by have been maintained in accordance with all applicable Lawrequirements, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA)if they are intended to qualify for special tax treatment meet all requirements for such treatment, and (iii) deferred compensation benefits accrued if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiaryappropriate, based upon reasonable actuarial assumptions.
(kg) Each stock option issued since January 1To the knowledge of the Company, 2005 with respect each Employee Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) that is subject to GFI Common Stock was granted with Section 409A of the Code, has been operated in all material respects based upon a per-share exercise or base pricegood faith, as reasonable interpretation of Section 409A of the case may be, not less than Code and the fair market value of a share of GFI Common Stock on the date of grantauthorities thereunder.
(lh) With respect to each GFI Benefit Plan established that is subject to Title IV or maintained outside Section 302 of ERISA or Section 412 or 4971 of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): Code: (i) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or by the terms Section 302 of such Foreign GFI Benefit Plan have been madeERISA, or, if applicable, accrued, in accordance with normal accounting practiceswhether or not waived; (ii) the fair market value of the assets of each funded Foreign GFI Benefit such Plan equals or exceeds the actuarial present value of all accrued benefits under such Plan (whether or not vested) on a termination basis; (iii) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the liability consummation of each insurer for the transactions contemplated by this agreement will not result in the occurrence of any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to such reportable event; (iv) all current and former participants in such plan according premiums to the actuarial assumptions and valuations most recently used Pension Benefit Guaranty Corporation have been timely paid in full; (v) no liability (other than for premiums to determine employer contributions to such Foreign GFI Benefit Plan and none the PBGC) under Title IV of the Transactions shall cause such assets ERISA has been or insurance obligations is expected to be materially less than such benefit obligationsincurred by the Company or any of its subsidiaries; and (iiivi) each Foreign GFI Benefit the PBGC has not instituted proceedings to terminate any such Plan required and, to the Company’s knowledge, no condition exists that presents a risk that such proceedings will be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). instituted or which would constitute grounds under Section 2.16(l) 4042 of ERISA for the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is termination of, or the appointment of a defined benefit pension plantrustee to administer, any such Plan.
Appears in 1 contract
Samples: Merger Agreement (NYSE Euronext)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a) of the GFI Seller Disclosure Letter contains a true and complete list lists all material Benefit Plans, including the sponsor of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangementsuch Benefit Plan, and each other material employee benefit plan, program, agreement or arrangement (collectively, the “GFI indicates whether such Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) Plan is a Non-U.S. Benefit Plan as well as whether such Benefit Plan is an Assumed Benefit Plan. With respect to each of the GFI such Benefit PlansPlan, GFI Seller has delivered or made available to Parent complete copies of each of Buyers copies, to the following documentsextent applicable, of: (i) the GFI Benefit Plan governing documentation (including plan documents, as well as all amendments theretothereto (or a description if such plan is not written); (ii) the most recent annual report and actuarial report(Form 5500 series), if required under ERISA or the Code or any Law, for the most recent plan yearincluding all schedules thereto; (iii) the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, and other booklets actuarial valuation or information issued to participants and beneficiariesfinancial statements; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereofIRS determination letter; (v) all material reports, letters or other communications received in the past three (3) years from any Governmental Authority regarding any Assumed Benefit Plan; (vi) all trust agreements, insurance contracts and other funding agreements (including group annuity contracts, insurance policies, administrative services contracts and investment management agreements) related to any Assumed Benefit Plan; and (vvii) the most recent determination letter received from summary plan description, including any summary of material modifications, and for each unwritten Benefit Plan, a description of the IRS with respect to each GFI material terms.
(b) Except as set forth in Section 2.16(b) of the Seller Disclosure Letter, no Benefit Plan is a Multiemployer Plan or a plan that is subject to Title IV of ERISA, or Section 412 of the Code, and no Benefit Plan provides health or other welfare benefits to former employees of the Business other than health continuation coverage pursuant to Section 4980B of the Code. Any Multiemployer Plan set forth in Section 2.16(b) of the Seller Disclosure Letter shall not be included as an Assumed Benefit Plan by any Buyer.
(c) Each Benefit Plan has been maintained and administered in compliance in all material respects with its terms, the applicable requirements of ERISA, the Code and any other applicable Law. Each Benefit Plan intended to be qualified under Section 401(a) of the Code.
, and the trust (cif any) In the past six yearsforming a part thereof, neither GFI nor any ERISA Affiliate has maintained or contributed to or was required to contribute to any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge of GFISeller, there are no event has occurred existing circumstances or events that could would reasonably be expected to result in disqualification any revocation of, or a change to, such determination letter.
(d) Each Assumed Benefit Plan that is a Non-U.S. Benefit Plan has, to the extent intended or required to be qualified, approved or registered by or with a Governmental Authority, has been so qualified, approved or registered by or with such Governmental Authority and, to the Knowledge of Seller, no condition exists that would reasonably be expected to jeopardize such GFI Benefit Planqualification, approval or registration, as applicable.
(e) Each Except as would not reasonably be expected to be materially adverse, individually or in the aggregate, to the Transferred Entities or the ongoing conduct of the GFI Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable LawsBusiness by the Transferred Entities, including ERISA and the Code.
(f) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such other than routine claims for federal income tax purposes.
(g) Neither the execution of this Agreement nor the consummation of the Transactions will (either alone or together with any other event) (i) cause any payment (whether of severance pay or otherwise) to become due to any current or former employee or director of GFI or a GFI Subsidiary, (ii) cause an increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI Subsidiary, (iii) cause any individual to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under Section 280G of the Code.
(h) There there are no pending or, to the Knowledge of GFISeller, threatened material claims by or on behalf of any participant in respect of or relating to any of the GFI Benefit Plans, or otherwise involving any Benefit Plan or the assets of any Benefit Plan.
(f) Except as set forth in Section 2.16(f) of the Seller Disclosure Letter, the consummation of the transactions contemplated by this Agreement, either alone or in conjunction with any other event (where such other event would not alone have an effect described in this sentence), will not give rise to any payment under any Benefit Plan, or accelerate the time of payment or vesting, increase or require the funding of any amount of compensation or benefits due to, or result in forgiveness of any debt of, in each case, any Business Employee or other individual service provider of the Transferred Entities. No amount that could be received (whether in cash or property or the vesting of the property) as a result of the consummation of the transactions contemplated by this Agreement by any employee employee, director or beneficiary covered other service provider of any Transferred Entity under any GFI Benefit Plan or otherwise involving would not be deductible by reason of Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code. The consummation of the transactions contemplated by this Agreement will not trigger any GFI payments or severance under the MW CIC Plan or any severance under any other Benefit Plan (other than routine claims for benefits)Plan.
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) No GFI Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of GFI or any GFI Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(lg) With respect to each GFI Assumed Benefit Plan established or maintained outside that is subject to Title IV of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): ERISA: (i) all material employer Seller, the Transferred Entities and employee contributions to each Foreign GFI Benefit Plan required by Law or by their respective ERISA Affiliates have satisfied the terms minimum funding standards of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practicesSection 430 of the Code; (ii) no reportable event within the fair market value meaning of Section 4043(c) of ERISA has occurred in the last six (6) years, other than any such event for which the thirty (30)-day notice period has been waived by the Pension Benefit Guaranty Corporation (the “PBGC”); (iii) in the last six (6) years, all premiums required to be paid to the PBGC have been timely paid in full; (iv) no cessation of operations that is treated as a withdrawal under Section 4062(e) of ERISA has occurred; (v) all notices related to reportable events, annual funding notices, notices required under Sections 204(h), 4010, 4062 and 4063 of ERISA, and notices related to unpaid contributions required to be provided to the PBGC and participants have been made; and (vi) Seller, the Transferred Entities and their respective ERISA Affiliates have no unsatisfied liabilities under Title IV of ERISA, other than for PBGC premiums or plan contributions that are due but not delinquent under Section 4007 of ERISA. Except as set forth in Section 2.16(g) of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit PlanSeller Disclosure Letter, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants each Multiemployer Plan, except as would not reasonably be expected to result in liability to the Transferred Entities: (i) neither Seller nor any of its ERISA Affiliates has completely or partially withdrawn from, or incurred any “withdrawal liability” (pursuant to Part I of Subtitle E of Title IV of ERISA), to any such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and which has not been satisfied in full; (ii) none of the Transactions shall cause Transferred Entities nor any of their ERISA Affiliates has received any notification that any such assets plan is in reorganization, has been terminated, is insolvent, or insurance obligations has experienced a mass withdrawal or is reasonably expected to be materially less than such benefit obligationsin reorganization, to be insolvent, to be terminated or to experience a mass withdrawal; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l) neither the execution or delivery of this Agreement nor the consummation of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension plan.transactions contemplated in this Agreement will result in Buyers or the Transferred Entities incurring any
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a) of the GFI Disclosure Letter contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangement, and each other material employee benefit plan, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) With respect to each of the GFI material Nalco Benefit Plans, GFI Nalco has delivered or made available to Parent Ecolab (to the extent requested by Ecolab prior to the date of this Agreement) correct and complete copies of each of the following documents: (i) the GFI such Nalco Benefit Plan governing documentation (including all material amendments thereto); , (ii) the annual report and actuarial report, if required under ERISA or the Code or any LawCode, for the most recent plan year; year ending prior to the date hereof, (iii) the most recent Summary Plan Descriptionsummary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Nalco Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement Contract (including all amendments thereto) and the most recent latest financial statements with respect to the reporting period ended most recently preceding the date thereof; and , (v) the most recent determination letter received from the IRS with respect to each GFI Nalco Benefit Plan that is intended to be qualified under Section 401(a) of the Code and (vi) all material notices with respect to any Nalco Benefit Plan that were given by any Governmental Authority to Nalco, any Nalco Subsidiary or any ERISA Affiliate or any Nalco Benefit Plan in the last three plan years ending prior to the date of this Agreement or in the period ending on the date of this Agreement.
(b) Except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have a Nalco Material Adverse Effect, (i) no liability under Title IV of ERISA has been incurred by Nalco or any ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a risk to Nalco or any ERISA Affiliate of incurring a liability under Title IV of ERISA, in each case, with respect to any Nalco U.S. Benefit Plan, (ii) no Nalco U.S. Benefit Plan subject to the minimum funding requirements of Section 302 of ERISA or any trust established thereunder has failed to meet such minimum funding standards (as described in Section 302 of ERISA), whether or not waived, as of the last day of the most recent fiscal year of such Nalco Benefit Plan ended prior to the date of this Agreement, (iii) with respect to each of the Nalco U.S. Benefit Plans that is subject to Title IV of ERISA, the present value of projected benefit obligations under such Nalco U.S. Benefit Plan, as determined by the Nalco U.S. Benefit Plan’s actuary based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such actuary, did not, as of its latest valuation date, exceed the then-current value of the assets of such Nalco Benefit Plan allocable to such projected benefit obligations and (iv) any cessation of benefit accruals under a Nalco Benefit Plan was effected in accordance with any applicable requirements of ERISA and the Code, including (to the extent applicable) Section 204(h) of ERISA. Neither Nalco nor any ERISA Affiliate maintains or contributes to any Multiemployer Plan and, except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have a Nalco Material Adverse Effect, neither Nalco nor any ERISA Affiliate has incurred or has any reason to believe it has incurred or will incur any withdrawal liability under Title IV of ERISA.
(c) In the past six years, neither GFI nor any ERISA Affiliate has maintained or contributed to or was required to contribute to any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Nalco U.S. Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge knowledge of GFINalco as of the date of this Agreement, no event has occurred that could reasonably be expected to result in disqualification of such GFI Nalco U.S. Benefit Plan.
(ed) Each Except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have a Nalco Material Adverse Effect, each of the GFI Nalco U.S. Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code.
(fe) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 4.15(e) of the XxxxxxxxNalco Disclosure Letter includes an accurate and complete list of all change in control, severance and similar agreements to which any Section 16 Officer of Nalco is a party as of the date hereof and information in reasonable detail regarding all Nalco Stock Options and Nalco Stock-Xxxxx ActBased Awards held by such Section 16 Officers as of the date hereof. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such for federal income tax purposes.
(g) Neither the execution of this Agreement nor the The consummation of the Transactions transactions contemplated by this Agreement will (either alone or together with any other event) not (i) cause any payment (whether of severance pay or otherwise) to become due to entitle any current or former director, officer, employee or director agent of GFI Nalco or a GFI Subsidiaryany Nalco Subsidiary to any material severance pay, unemployment compensation or any other payment, (ii) cause an accelerate the time of payment or vesting, or materially increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of due to any compensation or benefits payable to or in respect of any such current or former director, officer, employee or director of GFI agent or a GFI Subsidiary, (iii) cause result in any individual to accrue material prohibited transaction described in Section 406 of ERISA or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 4975 of the Code or (v) result in payments under any of the GFI Benefit Plans for which would an exemption is not be deductible under Section 280G of the Codeavailable.
(hf) There are no pending orExcept for matters that, to individually and in the Knowledge of GFIaggregate, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could have not had and would not reasonably be expected to give rise to have a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) No GFI Nalco Material Adverse Effect, no Nalco Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former directors, officers, employees or directors agents of GFI Nalco or any GFI Nalco Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI Nalco or a GFI Nalco Subsidiary or (iv) benefits the full costs of which are borne by the current or former director, officer, employee or director agent or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(lg) With respect to each GFI material Nalco Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI Nalco or any GFI Nalco Subsidiary residing outside of the U.S. (a “Foreign GFI Nalco Benefit Plan”): ), except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have a Nalco Material Adverse Effect, (i) all material employer and employee contributions to each Foreign GFI Nalco Benefit Plan required by Law or by the terms of such Foreign GFI Nalco Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; , (ii) the fair market value of the assets of each funded Foreign GFI Nalco Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan intended to be funded through insurance or the book reserve established for any Foreign GFI Benefit Planreserved is fully funded or book reserved, together with any accrued contributionsas appropriate, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the based on reasonable actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Nalco Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities authorities.
(including tax authorities). Section 2.16(lh) Except for matters that, individually and in the aggregate, have not had and would not reasonably be expected to have a Nalco Material Adverse Effect, there are no pending or, to the knowledge of Nalco, threatened claims by or on behalf of any of the GFI Disclosure Letter separately identifies each Foreign GFI Nalco Benefit Plans, by any employee or beneficiary covered under any Nalco Benefit Plan or otherwise involving any Nalco Benefit Plan.
(i) Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Nalco Material Adverse Effect, each Nalco Benefit Plan and each employment, management, severance, consulting, relocation, repatriation, expatriation or similar agreement between Nalco or any Nalco Subsidiary and any employee, consultant or independent contractor that provides deferred compensation subject to Section 409A of the Code is a defined benefit pension planin compliance with applicable guidance under Section 409A of the Code in form and operation.
Appears in 1 contract
Samples: Merger Agreement (Nalco Holding CO)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a3.16(a) of the GFI Disclosure Letter contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangement, and each other material employee benefit plan, program, agreement or arrangement (collectively, the “GFI Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI T&F Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any T&F Subsidiary. Not more than 60 days after the date hereof, GFI Subsidiaryshall revise Section 3.16(a) of the GFI Disclosure Letter to identify (by marking them with an asterisk) those GFI Benefit Plans that are maintained exclusively by the CME Retained Subsidiaries solely for the benefit of Continuing Employees and to identify (by marking them with a cross) those GFI Benefit Plans maintained in whole or part for the benefit of any Continuing Employee.
(b) With respect to each of the GFI Benefit Plans, GFI has delivered or made available to Parent CME complete copies of each of the following documents: (i) the GFI Benefit Plan governing documentation (including all amendments thereto); (ii) the annual report and actuarial report, if required under ERISA or the Code or any Law, for the most recent plan year; (iii) the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, and other booklets or information issued to participants and beneficiaries; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereof; and (v) the most recent determination letter received from the IRS with respect to each GFI Benefit Plan that is intended to be qualified under Section 401(a) of the Code.
(c) In the past six years, neither GFI nor any ERISA Affiliate has maintained or contributed to or was required to contribute to any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge of GFI, no event has occurred that could reasonably be expected to result in disqualification of such GFI Benefit Plan.
(e) Each of the GFI Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code.
(f) Neither GFI nor any GFI T&F Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI T&F Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI T&F Subsidiaries as such for federal income tax purposes.
(g) Neither the execution of this Agreement nor the consummation of the Transactions will (either alone or together with any other event) (i) cause any payment (whether of severance pay or otherwise) to become due to any current or former employee or director of GFI or a GFI T&F Subsidiary, (ii) cause an increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI T&F Subsidiary, (iii) cause any individual to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under Section 280G of the Code.
(h) There are no pending or, to the Knowledge of GFI, threatened material claims in respect of or relating to any of the GFI Benefit Plans, by any employee or beneficiary covered under any GFI Benefit Plan or otherwise involving any GFI Benefit Plan (other than routine claims for benefits).
(i) Neither GFI, any GFI T&F Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) No GFI Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of GFI or any GFI T&F Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI or a GFI T&F Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(l) With respect to each GFI Benefit Plan established or maintained outside of the U.S. primarily for the benefit of employees of GFI or any GFI T&F Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): (i) all material employer and employee contributions to each Foreign GFI Benefit Plan required by Law or by the terms of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit Plan, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and none of the Transactions shall cause such assets or insurance obligations to be materially less than such benefit obligations; and (iii) each Foreign GFI Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities (including tax authorities). Section 2.16(l3.16(l) of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension plan.
Appears in 1 contract
Samples: Purchase Agreement (GFI Group Inc.)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a) of the GFI Seller Disclosure Letter contains a true and complete list lists all material Benefit Plans, including the sponsor of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, change of control, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program, trust, agreement or arrangementsuch Benefit Plan, and each other material employee benefit plan, program, agreement or arrangement (collectively, the “GFI indicates whether such Benefit Plans”) currently maintained or contributed to or required to be contributed to by (i) GFI, (ii) any GFI Subsidiary or (iii) any ERISA Affiliate, in any case for the benefit of any current or former employee, worker, consultant, director or member of GFI or any GFI Subsidiary.
(b) Plan is a Non-U.S. Benefit Plan as well as whether such Benefit Plan is an Assumed Benefit Plan. With respect to each of the GFI such Benefit PlansPlan, GFI Seller has delivered or made available to Parent complete copies of each of Buyers copies, to the following documentsextent applicable, of: (i) the GFI Benefit Plan governing documentation (including plan documents, as well as all amendments theretothereto (or a description if such plan is not written); (ii) the most recent annual report and actuarial report(Form 5500 series), if required under ERISA or the Code or any Law, for the most recent plan yearincluding all schedules thereto; (iii) the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, and other booklets actuarial valuation or information issued to participants and beneficiariesfinancial statements; (iv) if the GFI Benefit Plan is funded through a trust or any third party funding vehicle, the trust or other funding agreement (including all amendments thereto) and the most recent financial statements thereofIRS determination letter; (v) all material reports, letters or other communications received in the past three (3) years from any Governmental Authority regarding any Assumed Benefit Plan; (vi) all trust agreements, insurance contracts and other funding agreements (including group annuity contracts, insurance policies, administrative services contracts and investment management agreements) related to any Assumed Benefit Plan; and (vvii) the most recent determination letter received from summary plan description, including any summary of material modifications, and for each unwritten Benefit Plan, a description of the IRS with respect to each GFI material terms.
(b) Except as set forth in Section 2.16(b) of the Seller Disclosure Letter, no Benefit Plan is a Multiemployer Plan or a plan that is subject to Title IV of ERISA, or Section 412 of the Code, and no Benefit Plan provides health or other welfare benefits to former employees of the Business other than health continuation coverage pursuant to Section 4980B of the Code. Any Multiemployer Plan set forth in Section 2.16(b) of the Seller Disclosure Letter shall not be included as an Assumed Benefit Plan by any Buyer.
(c) Each Benefit Plan has been maintained and administered in compliance in all material respects with its terms, the applicable requirements of ERISA, the Code and any other applicable Law. Each Benefit Plan intended to be qualified under Section 401(a) of the Code.
, and the trust (cif any) In the past six yearsforming a part thereof, neither GFI nor any ERISA Affiliate has maintained or contributed to or was required to contribute to any plan or arrangement that is or was (i) subject to Section 412 of the Code or Section 302 of Title IV of ERISA, (ii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA or (iii) a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
(d) Each GFI Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge of GFISeller, there are no event has occurred existing circumstances or events that could would reasonably be expected to result in disqualification any revocation of, or a change to, such determination letter.
(d) Each Assumed Benefit Plan that is a Non-U.S. Benefit Plan has, to the extent intended or required to be qualified, approved or registered by or with a Governmental Authority, has been so qualified, approved or registered by or with such Governmental Authority and, to the Knowledge of Seller, no condition exists that would reasonably be expected to jeopardize such GFI Benefit Planqualification, approval or registration, as applicable.
(e) Each Except as would not reasonably be expected to be materially adverse, individually or in the aggregate, to the Transferred Entities or the ongoing conduct of the GFI Benefit Plans has been operated and administered in all material respects in accordance with its terms and all applicable LawsBusiness by the Transferred Entities, including ERISA and the Code.
(f) Neither GFI nor any GFI Subsidiary has made any loans to employees in violation of Section 402 of the Xxxxxxxx-Xxxxx Act. Each transfer of funds by GFI or any GFI Subsidiary to any of their respective employees that was deemed a loan was when made (and at all times since has been) properly treated by GFI and the GFI Subsidiaries as such other than routine claims for federal income tax purposes.
(g) Neither the execution of this Agreement nor the consummation of the Transactions will (either alone or together with any other event) (i) cause any payment (whether of severance pay or otherwise) to become due to any current or former employee or director of GFI or a GFI Subsidiary, (ii) cause an increase in the amount of compensation or benefits or the acceleration of the vesting or timing of payment of any compensation or benefits payable to or in respect of any current or former employee or director of GFI or a GFI Subsidiary, (iii) cause any individual to accrue or receive additional benefits, services or accelerated rights to payment of benefits under any GFI Benefit Plan, (iv) provide for payments that could subject any person to liability for tax under Section 4999 of the Code or (v) result in payments under any of the GFI Benefit Plans which would not be deductible under Section 280G of the Code.
(h) There there are no pending or, to the Knowledge of GFISeller, threatened material claims by or on behalf of any participant in respect of or relating to any of the GFI Benefit Plans, or otherwise involving any Benefit Plan or the assets of any Benefit Plan.
(f) Except as set forth in Section 2.16(f) of the Seller Disclosure Letter, the consummation of the transactions contemplated by this Agreement, either alone or in conjunction with any other event (where such other event would not alone have an effect described in this sentence), will not give rise to any payment under any Benefit Plan, or accelerate the time of payment or vesting, increase or require the funding of any amount of compensation or benefits due to, or result in forgiveness of any debt of, in each case, any Business Employee or other individual service provider of the Transferred Entities. No amount that could be received (whether in cash or property or the vesting of the property) as a result of the consummation of the transactions contemplated by this Agreement by any employee employee, director or beneficiary covered other service provider of any Transferred Entity under any GFI Benefit Plan or otherwise involving would not be deductible by reason of Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code. The consummation of the transactions contemplated by this Agreement will not trigger any GFI payments or severance under the MW CIC Plan or any severance under any other Benefit Plan (other than routine claims for benefits)Plan.
(i) Neither GFI, any GFI Subsidiary, any GFI Benefit Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection that could reasonably be expected to give rise to a civil liability under either Section 409 of ERISA or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.
(j) No GFI Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of GFI or any GFI Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) death benefits or retirement benefits under any “employee pension plan” (as defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of GFI or a GFI Subsidiary or (iv) benefits the full costs of which are borne by the current or former employee or director or his or her beneficiary.
(k) Each stock option issued since January 1, 2005 with respect to GFI Common Stock was granted with a per-share exercise or base price, as the case may be, not less than the fair market value of a share of GFI Common Stock on the date of grant.
(lg) With respect to each GFI Assumed Benefit Plan established or maintained outside that is subject to Title IV of the U.S. primarily for the benefit of employees of GFI or any GFI Subsidiary residing outside of the U.S. (a “Foreign GFI Benefit Plan”): ERISA: (i) all material employer Seller, the Transferred Entities and employee contributions to each Foreign GFI Benefit Plan required by Law or by their respective ERISA Affiliates have satisfied the terms minimum funding standards of such Foreign GFI Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practicesSection 430 of the Code; (ii) no reportable event within the fair market value meaning of Section 4043(c) of ERISA has occurred in the last six (6) years, other than any such event for which the thirty (30)-day notice period has been waived by the Pension Benefit Guaranty Corporation (the “PBGC”); (iii) in the last six (6) years, all premiums required to be paid to the PBGC have been timely paid in full; (iv) no cessation of operations that is treated as a withdrawal under Section 4062(e) of ERISA has occurred; (v) all notices related to reportable events, annual funding notices, notices required under Sections 204(h), 4010, 4062 and 4063 of ERISA, and notices related to unpaid contributions required to be provided to the PBGC and participants have been made; and (vi) Seller, the Transferred Entities and their respective ERISA Affiliates have no unsatisfied liabilities under Title IV of ERISA, other than for PBGC premiums or plan contributions that are due but not delinquent under Section 4007 of ERISA. Except as set forth in Section 2.16(g) of the assets of each funded Foreign GFI Benefit Plan and the liability of each insurer for any Foreign GFI Benefit Plan funded through insurance or the book reserve established for any Foreign GFI Benefit PlanSeller Disclosure Letter, together with any accrued contributions, is not materially less than the accrued benefit obligations with respect to all current and former participants each Multiemployer Plan, except as would not reasonably be expected to result in liability to the Transferred Entities: (i) neither Seller nor any of its ERISA Affiliates has completely or partially withdrawn from, or incurred any “withdrawal liability” (pursuant to Part I of Subtitle E of Title IV of ERISA), to any such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign GFI Benefit Plan and which has not been satisfied in full; (ii) none of the Transactions shall cause Transferred Entities nor any of their ERISA Affiliates has received any notification that any such assets plan is in reorganization, has been terminated, is insolvent, or insurance obligations has experienced a mass withdrawal or is reasonably expected to be materially less than in reorganization, to be insolvent, to be terminated or to experience a mass withdrawal; (iii) neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated in this Agreement will result in Buyers or the Transferred Entities incurring any “withdrawal liability” (pursuant to Part I of Subtitle E of Title IV of ERISA) to any such benefit obligationsplan (including any contingent liability incurred on account of Seller or any of its ERISA Affiliates); (iv) all contributions required to be made to such a Multiemployer Plan have been timely paid in full; and (iiiv) Seller, the Transferred Entities and each Foreign GFI Benefit Plan of their respective ERISA Affiliates have performed all obligations required to be registered has been registered performed by them under, and has been maintained are not in good standing with applicable regulatory authorities violation or default under, any Multiemployer Plan.
(including tax authorities). Section 2.16(lh) There are no pending, promised or committed undertakings to increase post-employment health, life and welfare benefits to Business Employees or former employees of the GFI Disclosure Letter separately identifies each Foreign GFI Benefit Plan that is a defined benefit pension planTransferred Entities and their dependents or to extend such benefits to new classes of Business Employees or former employees of the Transferred Entities and their dependents.
Appears in 1 contract
Samples: Purchase Agreement (WestRock Co)
