Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i) of the Seller Disclosure Letter lists all material Company Plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit Plan. With respect to each such Company Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of (i) the plan and trust documents (with all amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan description, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Group. (b) Each Benefit Plan 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 and, to the Knowledge of Seller, there are no circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws. (c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA. (d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter. (e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan. (f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued. (g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code. (h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Plan. (i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Gogo Inc.), Purchase and Sale Agreement (Intelsat S.A.)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i2.16(a) of the Seller Disclosure Letter lists all material Company Plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) Benefit Plans as of the Seller Disclosure Letter lists each material Seller Benefit Plandate hereof. With respect to each such Company Benefit Plan, Seller the Company has made available to Buyer complete and correct copies (copies, to the extent applicable) , of (i) the plan and trust documents (with all amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan description, (ii) the most recent annual report (Form 5500 series), (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determinationdetermination letter.
(b) None of the Company, advisory its Subsidiaries or opinion letter. With respect to each material Seller Benefit Planany trade or business (whether or not incorporated) that is or has in the past six years been under common control or treated as a single employer with the Company or any of its Subsidiaries under section 414(b), Seller has made available to Buyer complete and correct copies (to the extent applicablec), (m) or (o) of the Code (an “ERISA Affiliate”) has in the past six years contributed or been obligated to contribute to or has any current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries or contingent liability or obligation in respect of material modifications), any Multiemployer Plan or a written summary plan that is subject to Title IV of ERISA that will be a liability of the material terms thereofCompany or any of its Subsidiaries following the Closing, whether with respect to events occurring prior to, on or following the Closing. Except as described set forth in Section 2.16(a)(iii2.16(b) of the Seller Disclosure Letter, all no Company Plans are sponsored by a Target Company, and none provide Benefit Plan provides health or other welfare benefits to or cover employees, officers, directors or individual service providers former employees of the Retained Business Company or Seller Groupany of its Subsidiaries other than health continuation coverage pursuant to Section 4980B of the Code at the sole expense of the participant.
(bc) Except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, each Company Benefit Plan (other than Foreign Plans) has been maintained and administered in compliance with its terms, the applicable requirements of ERISA, the Code and any other applicable Law. Each Company Benefit Plan intended to be qualified under Section section 401(a) of the Code, and the trust (if any) forming a part thereof, has received a favorable determination letter from the IRS and, to the Knowledge of Seller, there are no existing circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. letter.
(d) Except as would not reasonably be expectedexpected to be, individually or in the aggregate, to be material to the Business or the Target CompaniesCompany and its Subsidiaries, taken as a whole, all contributions (including all employer contributions and employee salary reduction contributions) required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely mademade 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 (including any valid extension), and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that contributions to such funds or trusts for any period ending before the Closing Date which are not yet due will have been properly paid or accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company on or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in prior to the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure LetterClosing Date.
(e) Except as would not reasonably be expectedexpected to be, individually or in the aggregate, to be material to the Business or the Target CompaniesCompany and its Subsidiaries, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit PlanPlans, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, Plan or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting No amount that could be received (whether in cash or property or the generality vesting of the property) as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby (whether alone or in connection with any other event) by any employee, director or other service provider of the Company or any of its Subsidiaries under any Company Benefit Plan or otherwise would not be deductible by reason of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A 280G of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, (“Section 280G”) or is reasonably expected to be, or has been, would be subject to the interest or additional an excise tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(hg) Except as set forth disclosed in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Plan.
(i) Except as set forth in Section 2.16(i2.16(a) of the Seller Disclosure Letter, no payment or deemed payment by Company Benefit Plan is maintained outside the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) jurisdiction of the execution, delivery and performance of this Agreement by the Transferred CompaniesUnited States, or is maintained primarily for the consummation by benefit of an employee or group of employees residing or working outside the Transferred Companies of the transactions contemplated by this AgreementUnited States (any such Company Benefit Plan, thata “Foreign Plan”). Except as would not reasonably be expected to be, individually or in the aggregate, could material to the Company and its Subsidiaries, taken as a whole, all Foreign Plans have been established, maintained and administered in compliance with their terms and all applicable Laws. Except as would not reasonably be characterized expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as an “excess parachute payment” (as defined in Section 280G a whole, all Foreign Plans that are required to be funded are fully funded, and with respect to all other Foreign Plans, adequate reserves therefor have been established on the accounting statements of the Code)applicable Company or Subsidiary entity if required by applicable accounting standards or applicable Laws.
(h) None of the Company, its Subsidiaries or any of their respective ERISA Affiliates has withdrawn in a complete or partial withdrawal from any Multiemployer Plan in the six years prior to the Closing Date that will be a liability of the Company or any of its Subsidiaries following the Closing, whether with respect to events occurring prior to, on or following the Closing, nor has any of them incurred, and nor would any of them reasonably be expected to incur, any current or contingent liability or obligation due to the termination or reorganization of a Multiemployer Plan in the six years prior to the Closing Date, nor in the past six years has any of them received any notice concerning a determination that any Multiemployer Plan is or is expected to be “insolvent” within in the meaning of Section 4245 of ERISA. At and following the Closing, none of Buyer, the Company, its Subsidiaries or any of their respective ERISA Affiliates will have (i) any obligation to make any contribution to any Multiemployer Plan or (ii) any withdrawal liability with respect to any Multiemployer Plan under Section 4201 of ERISA except, in each case and with respect to any such Person, as it would have had even had the transactions contemplated by this Agreement not been consummated.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (PSAV, Inc.)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i) of the Seller Disclosure Letter lists all material Company Benefit Plans maintained solely for the benefit of Business Employees (the “Transferred Plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction”). Section 2.16(a)(ii) of the Seller Disclosure Letter lists each all material Seller Benefit PlanPlans. With respect to each such Company Seller Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of (i) the plan and trust documents (with all amendments thereto), ) and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan description, (ii) the most recent annual report (Form 5500 series) and (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory determination or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Group.
(b) No Seller Plan is a Multiemployer Plan or a plan that is subject to Title IV of ERISA, and no Seller 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. Neither the Company nor any of the Company’s assets could be subject to any Liability to a Multiemployer Plan or a plan subject to Title IV of ERISA as a result of being considered a single employer with Seller. No Benefit Plan is a “registered pension plan” or a “retirement compensation arrangement”, as such terms are defined under the Income Tax Act (Canada).
(c) Each Benefit Seller Plan has been registered (if required by Law), maintained and administered in all material respects in compliance with its terms, the applicable requirements of ERISA, the Code and any other applicable Law. Each Seller Plan 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 or opinion letter from the IRS and, to the Knowledge of Seller, there are no existing circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISAletter.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other Other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any of the Company Seller Plans and, with respect to Business Employeesthe Knowledge of Seller, each Seller Benefit Plan, there currently exists no state of facts which would reasonably be expected to give rise to any such claim or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Planother proceeding.
(fe) Without limiting Neither the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded execution and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (would reasonably be expected to, either alone or in combination with any other event, (i) result in (i) any payment becoming due to any Business Employee, (whether ii) materially increase any benefits under any Seller Plan with respect to any Business Employee or (iii) result in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vestingtime of payment, vesting or funding or timing of payment of increase the amount of, any compensation or benefits payabledue to any Business Employee.
(f) All material premiums, contributions or other payments required to be made to the Seller Plans with respect to all Business Employees by the Company or in respect Seller pursuant to the terms of any current or former employee, officer, director or independent contractor of any such Seller Plans and provisions and applicable Law as of the Transferred Companies Closing Date have been timely made and all benefits accrued under any unfunded Seller Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(g) Neither the Company nor Seller are party to any contract containing an indemnity or gross-up obligation on or after the Closing for any Taxes imposed under Section 4999 or Section 409A of the Code (or any corresponding provisions of their respective Subsidiaries state, local or (iiforeign Tax Law) any increased or accelerated funding obligation with respect to any Company PlanBusiness Employee.
(ih) Except as set forth The Company and Seller are and have, with respect to the Business Employees, been in Section 2.16(i) of material compliance with the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery Patient Protection and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code)Affordable Care Act and all reporting obligations thereunder.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Nucor Corp), Securities Purchase Agreement (Cornerstone Building Brands, Inc.)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i3.18(a) of the Seller Company Disclosure Letter lists all Schedule sets forth a true and complete list of the material Company Benefit Plans, and separately identifies each U.S. including all Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit PlanPlans subject to ERISA. With respect to each such Company Benefit Plan, Seller the Company has made available to Buyer Parent a true and complete copy of such Company Benefit Plan (with any amendments), if written, or a description of the material terms of such Company Benefit Plan if not written, and correct copies (to the extent applicable) of , (i) the plan and all trust documents (with all amendments thereto)agreements, and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan descriptionactuarial and trust reports for both ERISA funding and financial statement purposes, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 with all attachments required to have been filed with the IRS or the Department of Labor and all schedules thereto, (iv) the most recent IRS determination, advisory determination or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete letter and correct copies (to the extent applicablev) of the all current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Groupdescriptions.
(b) Each Company Benefit Plan 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 knowledge of Sellerthe Company, there are no existing circumstances or any events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification qualified status of any such Benefit Planplan. Each Company Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, including ERISA and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except 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 Effective Time, have been fully reflected on the books and records of the Company, except in each case as would not reasonably be expectednot, individually or in the aggregate, reasonably be expected to be result in a material liability to the Business or Company and the Target CompaniesCompany Subsidiaries, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan isNone of the Company, and no Target any of the Company Subsidiaries or any of their respective ERISA Affiliate thereof maintains, Affiliates (i) contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored)maintains, or has any current or contingent liability (including as an ERISA Affiliate) or obligation with respect (ii) has in the past six (6) years sponsored, maintained, contributed to or under: had, or has any liability that remains unsatisfied in respect of any, (iA) a “multiemployer plan as defined in plan” within the meaning of Section 3(37) or Section 4001(a)(3) of ERISA or Section 414(fERISA, (B) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” (as defined in Section 3(35) of ERISA ERISA) or a any other plan that is or was subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the CodeCode or Section 302 or Title IV of ERISA or (C) plan, program, Contract, policy, arrangement or agreement that provides for 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 Code (COBRA) or similar state law for which the covered Person pays the full premium cost of coverage), except with respect to a contractual obligation to reimburse any premiums such Person may pay in order to obtain health coverage under COBRA or other similar state law. No Except as provided in Section 3.18(c) of the Company Disclosure Schedule, no Company Benefit Plan is (xi) a “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code or Section 210 of ERISA Code), or (yii) a “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA).
(d) No Company Plan andThere are no Actions pending, or to the knowledge of the Company, threatened in writing with respect to Business Employees, no Seller any of the Company Benefit Plan, provides health, medical, dental Plans by any employee or life insurance benefits following retirement otherwise involving any such plan or other termination of employment or service the assets of any Person, or to any other Person, such plan (other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except routine claims for benefits), except in each case as would not reasonably be expectednot, individually or in the aggregate, reasonably be expected to be result in a material liability to the Business or Company and the Target CompaniesCompany Subsidiaries, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant .
(e) Except (i) as provided in any of the Company Plans and, Section 1.7 with respect to Business Employees, each Seller Benefit Plan, the Options and the Restricted Stock Awards or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h3.18(e) of the Seller Company Disclosure LetterSchedule, neither the execution, execution and delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination together with any other event) (A) result in (i) any payment (whether in cash, property or vesting of property) becoming duein, or an increase in cause the amount of compensation or benefits or the acceleration of the accelerated vesting, payment, funding or timing of payment of delivery of, or increase the amount or value of, any compensation or benefits payable, benefit to or in respect of any current or former employee, officer, trustee, director or independent contractor other service provider of the Company or any of the Transferred Companies or any of their respective Company Subsidiaries or result in the forgiveness of any such individual’s Indebtedness, (iiB) any increased result in an obligation to fund compensation or accelerated funding obligation with respect to benefits under any Company Plan.
Benefit Plan or limit or restrict the right to merge, amend, terminate any Company Benefit Plan or (iC) Except as set forth result in Section 2.16(i) the payment of the Seller Disclosure Letterany amount that would, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone individually or in combination with any other event) of the executionsuch payment, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as constitute an “excess parachute payment” (as defined in within the meaning of Section 280G of the Code).
(f) No Company Benefit Plan provides for, and neither the Company nor any Company Subsidiaries have an obligation to provide, any gross up, reimbursement or indemnification for taxes or any related interest or penalties incurred under Code Sections 4999 or 409A.
Appears in 2 contracts
Samples: Merger Agreement (Industrial Logistics Properties Trust), Merger Agreement (Monmouth Real Estate Investment Corp)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i2.15(a)(i) of the Seller Disclosure Letter lists all material Company Transferred Plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii2.15(a)(ii) of the Seller Disclosure Letter lists each all material Seller Benefit PlanPlans. With respect to each such Company material Transferred Plan, Seller has Sellers have made available to Buyer true, correct and complete and correct copies (to the extent applicable) of (i) the plan document and trust documents agreement (with or other funding instrument), including all amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwrittenfor any unwritten plan, a written description summary of the material terms thereofterms, (ii) the most recent summary plan descriptiondescriptions and all summaries of material modification thereto, (iii) the three (3) most recent actuarial report, financial statements and annual report on (Form 5500 series) with all schedules and attachments thereto, (iv) the most recent IRS determination, advisory determination or opinion letterletter received from the IRS, and (v) any non-routine correspondence with any Governmental Authority during the preceding three (3) years. With respect to each material Seller Benefit Plan, Seller has Sellers have made available to Buyer true, correct and complete and correct copies (to the extent applicable) of the current summary plan and trust documents description (with all amendments theretoor other summary of the material terms of such Seller Plan), and the most recent summary determination or opinion letter received from the IRS.
(b) Except as would not reasonably be expected to result in Liability to any of the Transferred Subsidiaries or the Business, none of the Transferred Subsidiaries nor Sellers or any Controlled Affiliates thereof sponsors, maintains, contributes to, has any obligation to contribute to, or has any other current or contingent liability or obligation under or with respect to: (i) a Multiemployer Plan, or (ii) a “defined benefit plan” (as defined in Section 3(35) of ERISA) or any other plan description that is or was subject to Section 412 or 430 of the Code, or Section 302 or Title IV of ERISA. Except as would not reasonably be expected to result in material Liability to any of the Transferred Subsidiaries or the Business, none of the Transferred Subsidiaries nor Sellers or any Controlled Affiliates sponsors, maintains, contributes to, has any obligation to contribute to, or has any other current or contingent liability or obligation under or with respect to: (with all summaries A) a “multiple employer welfare arrangement” (as defined in Section 3(40) of material modificationsERISA), (B) a “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code), or (C) a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letterplan that provides post-termination, all Company Plans are sponsored by a Target Companypost-ownership, and none provide or retiree health or other welfare benefits to Business Employees or cover employees, officers, directors or other individual service providers of the Retained Business other than (x) health continuation coverage pursuant to Section 4980B of the Code or Seller Groupother applicable Laws (“COBRA”) for which the covered Person pays the full cost of coverage or (y) as may be required by applicable Law of a jurisdiction outside of the United States. Except as would not reasonably be expected to result in material Liability to any of the Transferred Subsidiaries or the Business, none of the Transferred Subsidiaries nor Sellers or any Controlled Affiliates thereof or, to the Knowledge of Sellers, any other Person has engaged in any “prohibited transaction,” within the meaning of Section 406 and Section 407 of ERISA or Section 4975 of the Code, that is not otherwise exempt under Section 408 of ERISA.
(bc) Except as would not reasonably be expected to result in a material Liability to any of the Transferred Subsidiaries, the Business or Business Employee, each Benefit Plan has been sponsored, maintained, funded, operated and administered in accordance with its terms, and in compliance with the applicable requirements of ERISA, the Code, the Patient Protection and Affordable Care Act and any other applicable Law, and nothing has occurred and no condition exists with respect to any Benefit Plan (or former Benefit Plan) that could result in a material Tax, penalty or other Liability or obligation of any of the Transferred Subsidiaries, the Business or Business Employees, including with respect to Sections 6055, 6056, 4980B, 4980D, or 4980H of the Code. Each Benefit Plan intended to be qualified under Section 401(a) of the Code, and the trust (if any) forming a part thereof, has received a current favorable determination or opinion letter from the IRS or are entitled to rely on a favorable determination letter from the IRS as to its qualification within the meaning of Section 401(a) of the Code and, to the Knowledge of SellerSellers, there are no circumstances or events nothing has occurred that would could reasonably be expected to adversely affect such qualification of such Benefit Plan or result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISAopinion letter.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expectedexpected to result in a material Liability to any of the Transferred Subsidiaries, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a wholeBusiness Employees, other than routine claims for benefits, (i) there are no pending or, to the Knowledge of SellerSellers, threatened auditsclaims, investigationsactions, litigationcomplaints, proceedingssuit, disputes investigation, proceedings or claims Litigations by or on behalf of any Business Employee or any participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit PlanPlans, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, Plan or the assets of any Company Plans andBenefit Plan, and (ii) to the Knowledge of Sellers, there is no fact or circumstance that could give rise to any such claim, action, complaint, suit, investigation, proceeding or Litigation.
(e) The execution, delivery and performance by Sellers and their Controlled Affiliates of this Agreement and the Ancillary Agreements to which Sellers or any of their Controlled Affiliates are a party and the consummation of the transactions contemplated hereby and thereby do not alone or in combination with another event: (i) result in any payment or benefit becoming due to any current or former Business Employee or individual service provider of the Business; (ii) increase any compensation or material benefits under any Benefit Plan or otherwise with respect to any current or former Business EmployeesEmployee or individual service provider of the Business; (iii) result in the acceleration of the time of payment, each Seller Benefit Planvesting or funding or increase the amount of, any compensation or benefit due to any Business Employee or individual service provider of the Business, or result in the forgiveness of any such individual’s indebtedness; (iv) result in the payment of any amount (whether in cash or property or the vesting of property) that could, individually or in combination with any other such payment, constitute an “excess parachute payment” (within the meaning of Section 280G(b)(1) of the Code) or (v) result in the imposition on any person of an excise tax under Section 4999 of the Code.
(f) Without limiting Neither Sellers nor any of their Controlled Affiliates (including the generality of Section 2.16(aTransferred Subsidiaries) through Section 2.16(e)have any obligation to gross-up, each Non-U.S. Company Plan (i) has been in all material respects establishedindemnify, maintained, funded and administered in accordance with its terms and all applicable Laws of reimburse or otherwise make whole any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether individual for any Tax or not subject to ERISA), related interest or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved penalties incurred by any applicable taxation authorities to current or former Business Employees or individual service provider of the extent such approval is available. Except as would not reasonably be expectedBusiness, individually including under Sections 409A or in 4999 of the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accruedCode.
(g) Each Benefit Plan that constitutes in any part a “non-qualified nonqualified deferred compensation plan” (as defined in under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and maintained, in form and operation, administered in all material respects in accordance operational compliance with, and is in all material respects with in documentary compliance with, Section 409A of the Code and applicable all IRS guidance of the Department of Treasury and Internal Revenue Service; promulgated thereunder, and no amount under any such Benefit Plan plan, agreement or arrangement is, has been or is reasonably expected to be, or has been, be subject to the any additional Tax, interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including penalties under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Plan.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).
Appears in 2 contracts
Samples: Securities and Asset Purchase Agreement (Triumph Group Inc), Securities and Asset Purchase Agreement (Aar Corp)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i2.15(a) of the Seller Disclosure Letter lists sets forth a list of (i) all material Company Plans“employee benefit plans,” as defined in Section 3(3) of ERISA (whether or not subject to ERISA), and separately identifies (ii) all other employment, employee-benefit or compensations plans, Contracts, programs, funds, or arrangements, including severance pay, change in control, transaction-based, relocation, salary, continuation, bonus, incentive, equity or equity- based, retirement, post-termination, fringe benefit, perquisite, pension, profit sharing, retention or deferred compensation or similar plans, Contracts, programs, funds, or arrangements of any kind, in each U.S. case (x) that are sponsored, maintained or contributed to (or are required to be sponsored, maintained or contributed to) by Seller or any of its Subsidiaries and in which any of the current or former Business Employees participate or are entitled to participate or (y) with respect to which Seller or any member of the Company Group has any actual or contingent liability (all of the above being hereinafter individually or collectively referred to as a “Seller Benefit Plan” or the “Seller Benefit Plans”, respectively) except that there shall be no obligation to set forth on such list (A) any Seller Benefit Plan that is not material and Non(B) any transaction-U.S. based or equity-based Seller Benefit Plan as to which neither of the Companies will have any payment obligation and any liability (actual or contingent) for which will be solely borne by Seller (the payments described in this clause (B), the “Transaction and Equity Compensation”), in each case, other than any Seller Benefit Plan that would, but for this clause (A) and/or (B), be a Company Plan by jurisdictionBenefit Plan. Section 2.16(a)(ii2.15(a) of the Seller Disclosure Letter lists separately designates each material Seller Benefit Plan that, as of the date of this Agreement, is (1) sponsored, maintained or contributed to (or are required to be sponsored, maintained or contributed to) solely by one or more members of the Company Group or (2) with respect to which Buyer or its affiliates or any member of the Company Group reasonably could have any actual or contingent liability from and after the Closing (each, a “Company Benefit Plan”). With A true, complete and correct copy or, in the case of any unwritten Seller Benefit Plan a summary of material terms, of each of the Seller Benefit Plans, in each case as in effect on the date of this Agreement, has been made available to Buyer. In addition, with respect to each such Company Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of (i) the plan and trust documents (with all amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan description, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer a true, complete and correct copies copy of the following items (in each case to the extent applicable) of ): each trust or other funding arrangement; the current plan most recently filed annual report on Internal Revenue Service Form 5500 and trust documents (with all amendments schedules thereto), ; and the most recent summary plan description (with all summaries actuarial valuation. No Seller Benefit Plan is subject to the laws of material modifications), or a written summary of any jurisdiction outside the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller GroupUnited States.
(b) Each Seller Benefit Plan intended to be qualified under Section 401(a) complies in all material respects, and has been administered in compliance in all material respects with its terms and all requirements of applicable Law (including ERISA and the Code). Except as would not reasonably be expected to result in any material liability, and no litigation or governmental administrative proceeding, audit or other proceeding (other than those relating to routine claims for benefits) is pending or, to the trust (if any) forming a part Knowledge of Seller, threatened with respect to any Seller Benefit Plan or any fiduciary or service provider thereof, has received a favorable determination letter from the IRS and, to the Knowledge of Seller, there are is no circumstances reasonable basis for any such litigation or events proceeding.
(c) Each Seller Benefit Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS, and, to the Knowledge of Seller, no event or omission has occurred that would cause any Seller Benefit Plan to lose such qualified status. Except as would not reasonably be expected to result in any revocation ofmaterial liability to the Company Group, neither Seller nor any entity that would be considered a single employer with Seller under Section 414 of the Code or a change toSection 4001(b) of ERISA (an “ERISA Affiliate”) has, such determination letter or otherwise adversely affect within the qualification six (6) years preceding the date of such Benefit Plan. Each Benefit Plan has been establishedthis Agreement, sponsored, maintained, fundedcontributed to, administered and operated or been required to sponsor, maintain or contribute to or has any actual or contingent liability under (i) any employee benefit plan that is or was subject to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA or is otherwise a defined benefit plan or provides for a guaranteed payment by a member of the Company Group regardless of the grounds for termination, (ii) a multiemployer plan (as defined in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, and is not reasonably expected to incur, Section 3(37) of ERISA) or (iii) any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 funded welfare benefit plan within the meaning of Section 419 of the Code. Except as would not reasonably be expectedexpected to result in any material liability, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each neither Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or nor any ERISA Affiliate thereof maintainshas, contributes towithin the six (6) years preceding the date of this Agreement, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has incurred any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to under Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined that has not been paid in Section 3(40) of ERISAfull.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h2.15(d) of the Seller Disclosure LetterLetter or as would not be material, neither none of the executionSeller Benefit Plans provides health care or other welfare plan-based or derivative post-termination benefits to any Business Employee after their employment is terminated other than as required by Part 6 of Subtitle B of Title I of ERISA, similar state law or pursuant to an employment agreement made available to Buyer.
(e) Excluding the Transaction and Equity Compensation, the execution and delivery and performance of this Agreement and any Ancillary Agreement by the Transferred Companies nor any Seller Party and the consummation by the Transferred Companies of the transactions contemplated by this Agreement and the Ancillary Agreements will not (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or benefits, (ii) the acceleration of the vesting, funding vesting or timing of payment of any compensation or benefits payable, payable to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Plan.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).Group or
Appears in 1 contract
Samples: Stock Purchase Agreement
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i) of the Seller Disclosure Letter lists all material Company Plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit Plan. With respect to each such Company Plan, Seller has made available to Buyer Schedule 5.18 contains a complete and correct copies (to the extent applicable) accurate list of (i) the plan and trust documents (with all amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan description, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans and Company Benefit Arrangements. Schedule 5.18 specifically identifies all Company Plans (if any) that are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller GroupQualified Plans.
(b) Each The Company does not have, and has never had, any ERISA Affiliate.
(c) With respect, as applicable, to Benefit Plan intended Plans and Benefit Arrangements:
(i) The Company has delivered true, correct, and complete copies of the following documents with respect to be qualified all Company Plans and Company Benefit Arrangements to the Purchaser: (A) all plan or arrangement documents, including but not limited to trust agreements, insurance policies, service agreements and formal and informal amendments to each; (B) the most recent Forms 5500 or 5500C/R and any attached financial statements and related actuarial reports, and those for the prior three years; (C) the last Internal Revenue Service ("IRS") determination letter, the last IRS determination letter that covered the qualification of the entire plan (if different), and the materials submitted to obtain those letters; (D) summary plan descriptions and summaries of material modifications, and any prospectuses that describe the Company Benefit Arrangements or Company Plans; (E) written descriptions of all non-written agreements relating to any such plan or arrangement; (F) all reports submitted within the three years preceding the date of this Agreement by third-party administrators, actuaries, investment managers, consultants, or other independent contractors (other than participant statements); (G) all notices that the IRS, Department of Labor or any other governmental agency or entity issued to the Seller within the four years preceding the date of this Agreement; (H) employee manuals or handbooks containing personnel or employee relations policies; (I) the most recent quarterly listing of workers' compensation claims and a schedule of workers' compensation claims of the Seller for the last three fiscal years; and (J) any other documents the Purchaser has requested;
(ii) the Qualified Plans qualify under Section 401(a) of the Code, and the trust (if any) forming a part thereof, nothing has received a favorable determination letter from the IRS and, occurred with respect to the Knowledge operation of Sellerany Qualified Plan that could cause the imposition of any liability, there are no circumstances or events that would reasonably be expected to result in any revocation oflien, penalty, or a change to, such determination letter tax under ERISA or otherwise adversely affect the qualification of such Code; each Company Plan and each Company Benefit Plan. Each Benefit Plan Arrangement has been established, maintained, funded, administered and operated in all material respects maintained in accordance with its terms constituent documents and with all applicable Law. No Target Company has incurredprovisions of domestic and foreign laws, including federal and is not reasonably expected to incur, state securities laws and any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, reporting and premium and benefit payments that are due disclosure requirements; with respect to each Company Plan, no transactions prohibited by Code Section 4975 or ERISA Section 406 and no breaches of fiduciary duty described in ERISA Section 404 have occurred, and no Company Plan contains any security issued by the Company;
(iii) the Company has never sponsored or maintained, had any obligation to sponsor or maintain, or had any liability (whether actual or contingent, with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(cany of their assets or otherwise) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan any Benefit Plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the CodeCode or Title IV of ERISA (including any Multiemployer Plan);
(iv) with respect to each Pension Plan, (I) the Company has not terminated or withdrawn (partially or fully) or sought a funding waiver, and no facts exist that could reasonably be expected to cause such actions; (II) no accumulated funding deficiency (under Code Section 412) exists or has existed; (III) no reportable event (as defined in ERISA Section 4043) has occurred; (IV) all costs have been provided for on the basis of consistent methods in accordance with sound actuarial assumptions and practices; (V) the assets, as of its last valuation date, exceeded its "Benefit Liabilities" (as defined in ERISA Section 4001(a)(16)); (VI) since the last valuation date, there have been no amendments or changes to increase the amounts of benefits and, to Seller's Knowledge, nothing has occurred that would reduce the excess of assets over benefit liabilities in such plans; and (VII) the Company has not incurred liability with respect to any Multiemployer Plan;
(v) there are no pending claims (other than routine benefit claims) or lawsuits that have been asserted or instituted by, against, or relating to, any Company Plans or Company Benefit Arrangements, nor is there any basis for any such claim or lawsuit. No Company Plans or Company Benefit Arrangements are or have been under audit or examination (nor has notice been received of a potential audit or examination) by any domestic or foreign governmental agency or entity, and no matters are pending with respect to any Company Plan under the IRS's Employee Plans Compliance Resolutions System or any successor or predecessor program;
(vi) no Company Plan or Company Benefit Arrangement contains any provision or is subject to any law that would accelerate or vest any benefit or require severance, termination or other payments or trigger any liabilities as a result of the transactions this Agreement contemplates; the Company has not declared or paid any bonus or incentive compensation related to the transactions this Agreement contemplates; and no payments under any Company Plan or Company Benefit Arrangement would, individually or collectively, be nondeductible under Code Section 280G;
(vii) all reporting, disclosure, and notice requirements of ERISA and the Code have been fully and completely satisfied with respect to each Company Plan and each Company Benefit Arrangement;
(viii) the Company has paid all amounts it is required to pay as contributions to the Company Plans as of the Balance Sheet Date; all benefits accrued under any unfunded Company Plan or Company Benefit Arrangement will have been paid, accrued, or otherwise adequately reserved in accordance with GAAP as of the Balance Sheet Date; and all monies withheld from employee paychecks with respect to Company Plans have been transferred to the appropriate plan within 30 days of such withholding;
(ix) no statement, either written or oral, has been made by the Company to any person with regard to any Company Plan or Company Benefit Arrangement that was not in accordance with the Company Plan or Company Benefit Arrangement and that would involve a material increase in expense or liability under such plan or arrangement;
(x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or Company has no liability (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(d) No Company Plan andwhether actual, contingent, with respect to Business Employeesany of its assets or otherwise) with respect to any Benefit Plan or Benefit Arrangement that is not a Company Plan or Company Benefit Arrangement or with respect to any Benefit Plan sponsored or maintained (or which has been or should have been sponsored or maintained) by any ERISA Affiliate; and
(xi) all group health plans of the Company materially comply with the requirements of Part 6 of Title I of ERISA ("COBRA"), Code Section 5000, and the Health Insurance Portability and Accountability Act; the Company has no Seller Benefit Planliability under or with respect to COBRA for their own actions or omissions or those of any predecessor; the Company's voluntary employee beneficiary association, provides healthif any, medicalis exempt from tax and complies with all requirements applicable to it; no employee or former employee (or beneficiary of either) of the Company is entitled to receive any benefits, dental including, without limitation, death or life insurance medical benefits following (whether or not insured) beyond retirement or other termination of employment or service of any Person, or to any other Personemployment, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letterapplicable laws require.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Plan.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(iSchedule 4.9(a) of to the Seller Company Disclosure Letter lists all material Company Plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit Plan. With respect to each such Company Plan, Seller has made available to Buyer Schedule contains a complete and correct copies (to the extent applicable) accurate list of (i) the plan and trust documents (with all amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan description, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans and Company Benefit Arrangements and specifically identifies all Company Plans (if any) that are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller GroupQualified Plans.
(b) Each With respect, as applicable, to Benefit Plan intended Plans and Benefit Arrangements:
(i) Cerulean has delivered or made available true, correct, and complete copies of the following documents with respect to be qualified all Company Plans and Company Benefit Arrangements to Aether: (A) all plan or arrangement documents, including but not limited to trust agreements, insurance policies, service agreements and formal and informal amendments to each; (B) the most recent Forms 5500 or 5500C/R and any attached financial statements and related actuarial reports, and those for the prior three years; (C) the last IRS determination letter, the last IRS determination letter that covered the qualification of the entire plan (if different), and the materials submitted to obtain those letters; (D) summary plan descriptions and summaries of material modifications, and any prospectuses that describe the Company Benefit Arrangements or Company Plans; (E) written descriptions of all non-written agreements relating to any such plan or arrangement; (F) all reports submitted within the three years preceding the date of this Agreement by third-party administrators, actuaries, investment managers, consultants, or other independent contractors (other than participant statements); (G) all notices that the IRS, Department of Labor or any other governmental agency or entity issued to the Company within the four years preceding the date of this Agreement; (H) employee manuals or handbooks containing personnel or employee relations policies; (I) the most recent quarterly listing of workers' compensation claims and a schedule of workers' compensation claims of the Company for the last three fiscal years; and (J) any other documents Aether has requested;
(ii) the Qualified Plans qualify under Section 401(a) of the Code, and the trust (if any) forming a part thereof, nothing has received a favorable determination letter from the IRS and, occurred with respect to the Knowledge operation of Sellerany Qualified Plan that could cause the imposition of any liability, there are no circumstances or events that would reasonably be expected to result in any revocation oflien, penalty, or a change to, such determination letter tax under ERISA or otherwise adversely affect the qualification of such Code; each Company Plan and each Company Benefit Plan. Each Benefit Plan Arrangement has been established, maintained, funded, administered and operated maintained in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Plan.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).with
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i) 2.13(a)of the Company Disclosure Letter contains a true and complete list of all of the Seller Disclosure Letter lists all Employee Plans and each material Company Plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) Compensation Arrangement as of the Seller Disclosure Letter lists each material Seller Benefit Plandate of this Agreement. With respect to each such Employee Plan and Compensation Arrangement, the Company Plan, Seller has previously made available to Buyer a true and complete copy of such Employee Plan or Compensation Arrangement or a summary description thereof, and correct copies (to the extent applicable) of , (i) the plan all trust agreements, administrative agreements, insurance policies and trust documents (with all amendments thereto), and the related insurance contracts or other funding or administrative arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the three most recent summary plan descriptionactuarial and trust reports for both ERISA funding and financial statement purposes, (iii) the three most recent actuarial reportForms 5500 with all attachments required to have been filed with the IRS or the U.S. Department of Labor, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory determination letter or opinion letter. With respect to each , if applicable, (v) all current summary plan descriptions and the most current summary of material Seller Benefit Planmodifications, Seller has made available to Buyer complete and correct copies (vi) all material communications received from or sent to the extent applicableIRS, the Pension Benefit Guaranty Corporation or the U.S. Department of Labor (including a written description of any material oral communication), (vii) current employee handbooks and manuals and (viii) all amendments and modifications to any such Employee Plan or Compensation Arrangement or related document. None of the Company, any Company Subsidiary or any ERISA Affiliate has at any time in the last six years had any obligation to sponsor, maintain or contribute to or had any Liability in respect of any plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA or any “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA. There is no Lien upon any Asset or any asset of any ERISA Affiliate outstanding pursuant to Section 412(n) of the current plan Code in favor of any Employee Plan. No Asset and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries no asset of material modifications), any ERISA Affiliate has been provided as security for any Employee Plan or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller GroupCompensation Arrangement.
(b) Each Benefit Employee Plan intended to be qualified under Section 401(a) of the Code, and the trust (if any) forming a part thereof, Code has received a favorable determination letter (or opinion letter, if applicable) from the IRS as to its qualification under the Code, and, to the Knowledge Company’s Knowledge, nothing has occurred since the date of Seller, there are no circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise that will adversely affect such qualification or tax-exempt status. All amendments and actions required to bring each Employee Plan into material conformity with the qualification applicable provisions of ERISA, the Code and other applicable Law have been made or taken (including amendments required pursuant to the Economic Growth Tax Relief Reconciliation Act of 2001), except to the extent such Benefit Planamendments or actions are not required by Law to be made or taken until after the Closing Date. Each Benefit Employee Plan and each Compensation Arrangement is in material compliance and has been established, maintained, funded, operated and administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, including without limitation, ERISA and the Code.
(c) To the Company’s Knowledge, and is except for the transactions contemplated by this Agreement, there has not reasonably expected to incur, been any material penalty event or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as circumstance that would not reasonably be expected, individually or in the aggregate, to be result in any material Liability (other than for the payment of benefits in the Ordinary Course) in respect of the Employee Plans or Compensation Arrangements. There are (i) no pending or, to the Business Company’s Knowledge, threatened audits, actions, suits, grievances, arbitrations, liens or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company claims by or on behalf of any Employee Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability former employee, officer, director, stockholder or obligation with respect contract worker or otherwise involving any such Employee Plan or Compensation Arrangement (other than routine claims for benefits, all of which have been adequately reserved for on the Business Financial Statements to the extent required), (ii) no facts or under: circumstances exist that could give rise to any such audits, actions, suits, liens or claims, and (iii) no administrative investigation, audit or other administrative proceeding by the U.S. Department of Labor, the IRS or any other governmental agency is pending, threatened or in progress, in each case of clause (i) a multiemployer plan as defined in Section 3(37through (iii) that has resulted or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be result in any material Liability to the Business Company or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any of the Company Plans andSubsidiaries.
(d) There is no Contract, agreement, plan or arrangement to which the Company or any of the Company Subsidiaries is a party or by which any of them are bound covering any Business Employee or former Business Employee which, individually or collectively, would (either alone or in combination with respect other events) give rise to Business Employeesthe payment or increase of any amount, each Seller Benefit Planincluding by way of accelerated vesting, that would not be deductible pursuant to Section 280G of the Code as a result of or otherwise involving any Company Plans and, in connection with respect to Business Employees, each Seller Benefit Planthe entering into, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) consummation of the Code) has been operated transactions contemplated by, this Agreement. The entering into and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will not directly or indirectly result (either alone or in combination connection with any other event) result in (i) any payment (whether in cashseverance or any other payment, property compensation or vesting of property) other benefit becoming due, or an ; any increase in the amount of compensation or benefits or benefits; the acceleration of the vesting, funding vesting or timing of payment of any compensation or benefits payablepayable or any funding, to through a grantor trust, rabbi trust or otherwise, of any compensation or benefits, in each case, in respect of any current or former employeeBusiness Employee, officer, officer or director of the Company or independent contractor any of the Company Subsidiaries.
(e) No current or former Business Employee of the Company or of any of the Transferred Companies Company Subsidiaries is or will become entitled to post-employment benefits of any kind by reason of employment with the Company, including death or medical benefits (whether or not insured), other than (i) coverage mandated by Section 4980B of the Code or any of their respective Subsidiaries similar state law, or (ii) retirement benefits payable under any increased Employee Plan qualified under Section 401(a) of the Code.
(f) All material contributions, Liabilities or accelerated funding obligation expenses required to be made or accrued by the Company or any Company Subsidiary pursuant to the terms and provisions of each Employee Plan or Compensation Arrangement, as of the date hereof, have been timely made or accrued and reflected in the financial statements of the Company and the contribution requirements, on a prorated basis, for the current year have been made or otherwise properly accrued on the books and records of the Company through the Closing Date in accordance with GAAP. There are no reserves, assets, surpluses or prepaid premiums with respect to any Company Plan.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as Employee Plan that is an “excess parachute payment” (employee welfare benefit plan as defined in Section 280G of the Code3(1).
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i) The SEC Reports list or describe each Plan that the Company or any of its Subsidiaries maintains or to which the Seller Disclosure Letter lists all material Company or any of its Subsidiaries contributes (the "COMPANY PLANS"). Neither the Company nor any of its Subsidiaries has any liability under any Plans other than the Company Plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit Plan. With respect to each such Company Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of (i) the plan and trust documents (with all amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan description, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in or incorporated by reference in the SEC Reports, neither the Company nor any Commonly Controlled Entity maintains or contributes to, or has within the preceding six years maintained or contributed to, or may have any liability with respect to any Plan subject to Title IV of ERISA or Section 2.16(a)(iii) 412 of the Seller Disclosure LetterCode or any "multiple employer plan" within the meaning of the Code or ERISA. Each Company Plan (and related trust, all Company Plans are sponsored by a Target Companyinsurance contract or fund) has been established and administered in accordance with its terms, and none provide benefits complies in form and in operation with the applicable requirements of ERISA and the Code and other applicable Requirements of Law. All contributions (including all employer contributions and employee salary reduction contributions) which are due have been paid to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Groupeach Company Plan.
(b) Each Benefit No Claim with respect to the administration or the investment of the assets of any Company Plan (other than routine claims for benefits) is pending.
(c) Except as could not reasonably be expected to have a Company Material Adverse Effect, each Company Plan that is intended to be qualified under Section 401(a) of the Code, Code is so qualified and the trust (if any) forming a part thereof, has received a favorable determination letter from the IRS and, to the Knowledge of Seller, there are no circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with so qualified during the period since its terms and with applicable Law. No Target Company has incurred, and adoption; each trust created under any such Plan is not reasonably expected to incur, any material penalty or Tax exempt from tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f501(a) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISAand has been so exempt since its creation.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit is a Retiree Welfare Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in Neither the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any consummation of the Company Plans and, with respect to Business Employees, each Seller Benefit PlanTransactions contemplated by this Agreement nor any termination of employment following such Transactions will accelerate the time of the payment or vesting of, or otherwise involving increase the amount of, compensation due to any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, employee or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, former employee whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as payment would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth constitute an "excess parachute payment" under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 280G of the Code.
(hf) There are no unfunded obligations under any Company Plan which are not fully reflected in the Financial Statements.
(g) Except as set forth in Section 2.16(h) of could not reasonably be expected to have a Company Material Adverse Effect, the Seller Disclosure LetterCompany has no liability, neither the executionwhether absolute or contingent, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with including any other event) result in (i) obligations under any payment (whether in cashCompany Plan, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Planmisclassification of any person as an independent contractor rather than as an employee.
(ih) Except as set forth The Company has the necessary and requisite authority to take the actions contemplated in Section 2.16(iSections 1.09(a) and (b) pursuant to the terms of the Seller Disclosure Letter, applicable Company Stock Option Plans and agreements evidencing the grant of Company Restricted Shares and Company Options and no payment consent is required of holders of Company Options or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code)Company Restricted Shares to effect such actions.
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(iSection 3.13(a) of the Seller Company Disclosure Letter lists sets forth as of the date of this Agreement a true, correct and complete list of material Company Benefit Plans, including all material Company PlansBenefit Plans subject to the Employee Retirement Income Security Act of 1974, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit Planas amended (“ERISA”). With respect to each such material Company Benefit Plan, Seller the Company has made available to Buyer Parent prior to the date hereof a true, correct and complete and correct copies (copy of such written Company Benefit Plan or a written description of the material terms of any such unwritten Company Benefit Plan and, to the extent applicable) of , (i) the plan and all material trust documents (with all amendments thereto)agreements, and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the two most recent summary plan descriptionactuarial and trust reports for both ERISA funding and financial statement purposes, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and with all attachments filed with the Internal Revenue Service (“IRS”) or the Department of Labor, (iv) the most recent IRS determination, advisory determination letter (or opinion letter. With respect letter upon which the Company is entitled to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments theretorely), and the most recent (v) all current summary plan description (with all descriptions, and summaries of material modifications)modification thereto and (vi) all correspondence relating to any such Company Benefit Plan between the Company, any of its Subsidiaries or a written summary their representatives and any Governmental Entity regarding any matter that remains unresolved as of the material terms thereofdate of this Agreement. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all “Company Plans are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Group.
(b) Each Benefit Plan 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 and, to the Knowledge of Seller, there are no circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to Plans” means each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined employee benefit plan, scheme, program, policy, arrangement and contract (including any “employee benefit plan,” as defined in Section 3(353(3) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(d) No Company Plan andand any bonus, with respect to Business Employeesdeferred compensation, no Seller Benefit Planstock bonus, provides healthstock purchase, medicalrestricted stock, dental or life insurance benefits following retirement stock option or other termination of employment equity-based arrangement, and any employment, termination, retention, bonus, change in control or service of severance agreement, plan, program, policy, arrangement or contract) under which any Personcurrent or former director, officer, individual independent contractor, consultant or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any employee of the Company Plans andor any of its Subsidiaries has any present or future right to benefits, with respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, that is maintained, funded and administered in accordance with sponsored or contributed to by the Company or any of its terms and all applicable Laws Subsidiaries or which the Company or any of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company its Subsidiaries has any obligation to gross-upmaintain, indemnify sponsor or otherwise reimburse any individual contribute, or with respect to any Tax, including under Section 409A or 4999 of which the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies Company or any of their respective its Subsidiaries would incur any direct or (ii) any increased or accelerated funding obligation with respect to any Company Planindirect liability.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (ai) Section 2.16(a)(iSchedule 3.01(o) contains a complete and accurate list of all Company Plans and Company Benefit Arrangements. Schedule 3.01(o) specifically identifies all Company Plans (if any) that are Qualified Plans.
(ii) With respect, as applicable, to Benefit Plans and Benefit Arrangements:
(A) the Seller Disclosure Letter lists all material Company Plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit Plan. With respect to each such Company Plan, Seller has made available true, correct, and complete copies of the following documents with respect to Buyer complete all Company Plans and correct copies (Company Benefit Arrangements to the extent applicablePurchasers: (1) of all current plan or arrangement documents, including but not limited to trust agreements, insurance policies, service agreements and formal and informal amendments to each; (i2) the most recent Forms 5500 or 5500C/R and any attached financial statements and related actuarial reports, and those for the prior three years; (3) the last Internal Revenue Service ("IRS") determination letter, the last IRS determination letter that covered the qualification of the entire plan and trust documents (with all amendments theretoif different), and the related insurance contracts materials submitted to obtain those letters; (4) summary plan descriptions and summaries of material modifications, and any prospectuses that describe the Company Benefit Arrangements or Company Plans; (5) written descriptions of all non-written agreements relating to any such plan or arrangement; (6) all reports submitted within the three years preceding the date of this Agreement by third-party administrators, actuaries, investment managers, consultants, or other funding arrangementsindependent contractors (other than participant statements); (7) all notices that the IRS, or, if unwritten, a written description Department of Labor or any other governmental agency or entity issued to the material terms thereof, Seller within the four years preceding the date of this Agreement; (ii8) employee manuals or handbooks containing personnel or employee relations policies; (9) the most recent summary plan description, (iii) the most recent actuarial report, financial statements quarterly listing of workers' compensation claims and annual report on Form 5500 and (iv) the most recent IRS determination, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) a schedule of the current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) workers' compensation claims of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Company, for the last three fiscal years; and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Group.(10) any other documents Purchasers has requested;
(bB) Each Benefit Plan intended to be qualified the Qualified Plans qualify under Section 401(a) of the Code, and the trust (if any) forming a part thereof, nothing has received a favorable determination letter from the IRS and, occurred with respect to the Knowledge operation of Sellerany Qualified Plan that could cause the imposition of any liability, there are no circumstances or events that would reasonably be expected to result in any revocation oflien, penalty, or a change to, such determination letter tax under ERISA or otherwise adversely affect the qualification of such Code; each Company Plan and each Company Benefit Plan. Each Benefit Plan Arrangement has been established, maintained, funded, administered and operated in all material respects maintained in accordance with its terms constituent documents and with all applicable Law. No Target Company has incurredprovisions of domestic and foreign laws, including federal and is not reasonably expected to incur, state securities laws and any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, reporting and premium and benefit payments that are due disclosure requirements; with respect to each Company Plan, no transactions prohibited by Code Section 4975 or ERISA Section 406 and no breaches of fiduciary duty described in ERISA Section 404 have occurred, except to the extent that such transaction or breach would not have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and, to the Company's Knowledge, no such transaction or breach has occurred; and no Company Plan, other than the Company's employee stock ownership plan, contains any security issued by any Related Employer;
(C) with respect to the Business Employees, each Seller Benefit Pension Plan, (1) no Related Employer has terminated or withdrawn (partially or fully) or sought a funding waiver, and no facts exist that could reasonably be expected to cause such actions; (2) no accumulated funding deficiency (under Code Section 412) exists or has existed; (3) no reportable event (as defined in ERISA Section 4043) has occurred; (4) all costs have been timely madeprovided for on the basis of consistent methods in accordance with sound actuarial assumptions and practices; (5) the assets, as of its last valuation date, exceeded its "Benefit Liabilities" (as defined in ERISA Section 4001(a)(16)); (6) since the last valuation date, there have been no amendments or changes to increase the amounts of benefits and, to the Knowledge of the Company, nothing has occurred that would reduce the excess of assets over benefit liabilities in such plans; and (7) no Related Employer has incurred liability (other than for routine contributions not yet due) with respect to any Multiemployer Plan nor terminated or withdrawn (partially or fully) from any such Plan, and all contributionsno facts exist that could reasonably be expected to cause such result or actions;
(D) there are no pending claims (other than routine benefit claims) or lawsuits that have been asserted or instituted by, assessmentsagainst, reimbursementsor relating to, distributionsany Company Plans or Company Benefit Arrangements, nor is there any basis for any such claim or lawsuit. No Company Plans or Company Benefit Arrangements are or have been under audit or examination (nor has notice been received of a potential audit or examination) by any domestic or foreign governmental agency or entity, and premium no matters are pending with respect to any Company Plan under the IRS's Employee Plans Compliance Resolutions System or any successor or predecessor program;
(E) no Company Plan or Company Benefit Arrangement contains any provision or is subject to any law that would accelerate or vest any benefit or require severance, termination or other payments or trigger any liabilities as a result of the transactions this Agreement contemplates; no Related Employer has declared or paid any bonus or incentive compensation related to the transactions this Agreement contemplates; and benefit no payments that are not yet due under any Company Plan or Company Benefit Arrangement would, individually or collectively, be nondeductible under Code Section 280G;
(F) all reporting, disclosure, and notice requirements of ERISA and the Code have been properly satisfied in all material respects with respect to each Company Plan and each Company Benefit Arrangement;
(G) each Related Employer has paid all amounts it is required to pay as contributions to the Company Plans as of the date of the Balance Sheet; all benefits accrued under any unfunded Company Plan or Company Benefit Arrangement will have been paid, accrued, or otherwise adequately reserved in accordance with GAAP as of the date of the Balance Sheet; and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation monies withheld from employee paychecks with respect to or under: Company Plans have been transferred to the appropriate plan within 30 days of such withholding;
(iH) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) to the Knowledge of the Code Company, no statement, either written or similar union sponsored pension oral, has been made by the Related Employers to any person with regard to any Company Plan or Company Benefit Arrangement that was not in accordance with the Company Plan or Company Benefit Arrangement and that would involve a material increase in expense or liability under such plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.;
(dI) No Company Plan and, the Related Employers have no liability with respect to Business Employeesany Benefit Plan that should have been sponsored or maintained by any ERISA Affiliate;
(J) all group health plans of the Related Employers materially comply with the requirements of Part 6 of Title I of ERISA ("COBRA"), Code Section 5000, and the Health Insurance Portability and Accountability Act; the Related Employers have no Seller Benefit Planliability under or with respect to COBRA for their own actions or omissions or those of any predecessor; the Related Employers' voluntary employee beneficiary association, provides healthif any, medicalis exempt from tax and complies with all requirements applicable to it; no employee or former employee (or beneficiary of either) of a Related Employer is entitled to receive any benefits, dental including, without limitation, death or life insurance medical benefits following (whether or not insured) beyond retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of applicable law requires, and Seller has provided its method and supporting documentation for any accounting charge it or the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.Related Employers have calculated for such benefits;
(eiii) Except as would not reasonably be expected, individually or in Schedule 3.01(o) hereto contains the aggregate, to be material to the Business or the Target Companies, taken as most recent quarterly listing of workers' compensation claims and a whole, other than routine schedule of workers' compensation claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or for the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Planlast three (3) fiscal years.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Plan.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i4.15(a) of the Seller Disclosure Letter lists all material Company Plans, Schedule sets forth a complete and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) correct list of the Seller Disclosure Letter lists each material Seller Company Benefit PlanPlans. With respect to each such Company Benefit Plan other than a Multiemployer Plan, Seller the Company has made available to Buyer complete and correct copies (the Buyer, to the extent applicable) of : (i) the each plan document, (including benefit schedules), trust agreements, and trust documents (with all insurance contracts and other funding vehicles and amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, ; (ii) the two most recent Annual Report (Form 5500 Series) and accompanying schedules, if any; (iii) the current summary plan description, (iii) together with the most recent actuarial reportsummary of material modifications, financial statements and annual report on Form 5500 and if any; (iv) the most recent IRS determinationannual and periodic financial reports, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies if any; (to the extent applicablev) of the current plan and trust documents (with all amendments thereto), and the most recent summary determination letter from the IRS, if any; (vi) where a plan document for a Company Benefit Plan does not exist, a detailed description of such Company Benefit Plan; (with vii) copies of all summaries of applications and material modifications), or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Company, and none provide benefits correspondence to or cover employeesfrom the IRS, officersthe U.S. Department of Labor or any other Governmental Entity with respect to any Company Benefit Plan; and (viii) all communications material to any employee relating to any Company Benefit Plan with respect to any amendments, directors terminations, plan establishments, increases or individual service providers decreases in benefits, acceleration of payments or vesting schedules or other events that could reasonably be expected to result in material Liability to the Retained Business or Seller GroupCompany Entities and which have not otherwise been incorporated into the applicable Company Benefit Plan document.
(b) Each Section 4.15(b) of the Disclosure Schedule identifies each Company Benefit Plan other than a Multiemployer Plan that is intended to be a “qualified under Section plan” within the meaning of section 401(a) of the Code, and Code (the trust (if any) forming a part thereof, “Qualified Plans”). The IRS has received issued a favorable determination letter from letter, or, in the IRS case of prototype or volume submitter plans, an advisory or opinion letter, with respect to each Qualified Plan that has not been revoked, and, to the Knowledge of Sellerthe Company, there are no existing circumstances nor have any events occurred that could adversely affect the qualified status of any Qualified Plan or events the related trust.
(c) With respect to the Company Benefit Plans:
(i) Each Company Benefit Plan other than a Multiemployer Plan is in compliance in all material respects with all applicable Laws and its terms. No prohibited transaction within the meaning of section 4975 of the Code or section 406 of ERISA for which there is no exemption has occurred with respect to any Company Benefit Plan other than a Multiemployer Plan. All material contributions required to be made by the Company Entities to any Company Benefit Plan by applicable Law or by any plan document or other contractual undertaking, and all material premiums due or payable by the Company Entities with respect to insurance policies funding any Company Benefit Plan, for any period through the date hereof 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 in the Financial Statements, to the extent required by GAAP.
(ii) No Company Benefit Plan is subject to Title IV or section 302 of ERISA or section 412 or 4971 of the Code.
(iii) None of the Company Entities has contributed to or been obligated to contribute or incurred any withdrawal Liability to any Multiemployer Plan or to any plan with two or more contributing sponsors at least two of whom are not under common control, within the meaning of section 4063 of ERISA. There does not now exist, nor do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would reasonably be expected to be a material Liability of the Company Entities following the Closing.
(iv) Each Company Benefit Plan that is a “non-qualified deferred compensation plan” is in material compliance (in operation and in form) with section 409A of the Code.
(v) None of the Company Entities has any revocation Liability for life insurance, health, medical or other welfare benefits to current or future retired or terminated employees or beneficiaries or dependents thereof, except for (A) coverage mandated by applicable Law; (B) death benefits under any “employee pension plan”, as that term is defined in section 3(2) of ERISA; (C) benefits, the full cost of which is borne by any such current or former employee or individual (or his or her beneficiary or dependent); or (D) coverage that continues until the end of the month during which such termination of employment or separation from service occurs. There does not now exist any circumstances with respect to any Company Benefit Plan that could subject the Company Entities to any Tax under section 4980B of the Code.
(vi) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will (either alone or in conjunction with any other event) result in, cause the accelerated vesting or delivery of, or increase the amount or value of, any payment or benefit to any employee of the Company Entities or result in payments under any of the Company Benefit Plans or employment agreements that would not be tax deductible under section 162(m) of the Code. No payment or benefit provided by the Company Entities in connection with the Transactions (either solely as a change to, such determination letter result thereof or otherwise adversely affect the qualification as a result of such Benefit Plan. Each transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of section 280G of the Code.
(vii) No Liability under any Company Benefit Plan has been established, maintained, funded, administered and operated nor has any such obligation been satisfied, with the purchase of a contract from an insurance company as to which the Company Entities have received notice that such insurance company is insolvent or is in all material respects rehabilitation or any similar proceeding.
(viii) No Company Benefit Plan is funded by a trust described in accordance with its terms and with applicable Law. No Target Company has incurred, and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 section 501(c)(9) of the Code. .
(d) There is no pending or, to the Knowledge of the Company, threatened Legal Proceeding (other than claims for benefits in the Ordinary Course) that has been asserted or instituted against the Company Benefit Plans, any fiduciaries thereof with respect to their duties to the Company Benefit Plans or the assets (including any assets held in trust) of the Company Benefit Plans that could reasonably be expected to result in any material Liability of the Company Entities to any Governmental Entity or any Multiemployer Plan.
(e) Except as required under this Agreement, since January 1, 2017, there has not been, nor has any commitment or communication been made or plan undertaken with respect to: (i) any adoption or material amendment by the Company Entities of any Company Benefit Plans; or (ii) any adoption of, or amendment to, or change in employee participation or coverage under, any Company Benefit Plans that, in the case of each of the preceding clauses (i) and (ii), has not been given effect prior to the Closing Date and would not reasonably be expected, individually or in the aggregate, to be material to increase materially the Business or expense of maintaining such Company Benefit Plans after the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable LawsClosing Date.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Plan.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Leucadia National Corp)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i) 4.13 of the Seller Company Disclosure Letter lists all material Company Benefit Plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit Plan. With respect to each such material Company Benefit Plan, Seller the Company has made available to Buyer Acquiror or Merger Sub complete and correct copies (to the extent applicable) of (i) the plan and trust documents (with all any amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan description, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan thereto and trust documents (with all amendments thereto), or any other funding instruments) and the most recent summary plan description (with all summaries and any summary of material modificationsmodifications thereto), or a written summary of (ii) the material terms thereof. Except as described most recent annual report (Form 5500 series), (iii) the most recent IRS determination letter, (iv) the most recent actuarial reports and (v) any non-routine correspondence with any Governmental Authority received in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Grouplast 3 years.
(b) No Company Benefit Plan is, and neither the Company nor any of its Subsidiaries has any Liability (including on account of an ERISA Affiliate) with respect to, (i) a Multiemployer Plan, (ii) a plan that is or was subject to Section 302 or Title IV of ERISA or Section 412 of the Code, (iii) a multiple employer plan (as described in Section 413(c) of the Code); or (iv) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). No Company Benefit Plan provides, and neither the Company nor any of its Subsidiaries has any Liability to provide, retiree or post-termination health or other welfare benefits to former employees of the Company or any of its Subsidiaries or any other Person, other than health continuation coverage pursuant to Section 4980B of the Code.
(c) Each Company Benefit Plan has been established, maintained, funded and administered in all material respects in compliance with its terms, the applicable requirements of ERISA, the Code and any other applicable Law. Each Company Benefit Plan 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 and, to the Knowledge of Sellerthe Company, there are no existing circumstances or events that would could reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect qualified status. Neither the qualification Company nor any of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company Subsidiaries has incurred, and is not or could reasonably expected expect to incur, any material penalty or Tax (whether or not assessed) under Sections Section 4980B, 4980D, 4980H, 4980H 6721 or 6722 of the Code. Except as would not reasonably be expectedWith respect to each Company Benefit Plan, individually or the Company and its Subsidiaries have timely made in the aggregate, to be all material to the Business or the Target Companies, taken as a whole, respects all required contributions, assessments, reimbursements, distributions, premiums and premium other payments and benefit payments that are due with respect to each have properly accrued any amounts not yet due. All options and restricted stock units listed in Section 4.5(a) of the Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, Disclosure Letter have been timely made, issued under and in compliance in all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance material respects with GAAP the Incentive Plan and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) . As of the Code or similar union sponsored pension plan outside date hereof, no more than 6,350,000 shares of Company Common Stock remain available for issuance under the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISAIncentive Plan.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other Other than routine claims for benefits, there are no pending or, to the Knowledge of Sellerthe Company, threatened actions, audits, investigations, litigation, proceedings, disputes litigations or claims by or on behalf of any participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit PlanPlans, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, Plan or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, that could reasonably be expected to result in any material Liability to the Company or any of its Subsidiaries.
(fe) Without limiting the generality of Section 2.16(a) through Section 2.16(e)the foregoing, with respect to each Non-U.S. Company Benefit Plan that is subject to the laws of a jurisdiction other than the United States (a “Foreign Plan”): (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) each Foreign Plan required to be registered has been registered and has been maintained in good standing in all material respect respects with applicable regulatory authorities authorities; (ii) each Foreign Plan intended to receive favorable tax treatment under applicable tax laws has been qualified or similarly determined to satisfy the requirements of such tax laws; (iii) no Foreign Plan is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA); and is approved (iv) no Foreign Plan has any material unfunded liabilities that are not reflected or reserved against on the Audited Financial Statements or the Unaudited Financial Statements, nor are such unfunded liabilities reasonably expected to arise in connection with the transactions contemplated by any applicable taxation authorities to this Agreement.
(f) Neither the extent such approval is available. Except as execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement would not reasonably be expectedexpected to, either alone or in combination with any other event, (i) result in any payment becoming due to any employee of the Company or any of its Subsidiaries or pursuant to any Company Benefit Plan, (ii) increase any benefits under any Company Benefit Plan, (iii) result in the acceleration of the time of payment, vesting or funding or increase the amount of, any compensation or benefits due to any employee of the Company or any of its Subsidiaries or under any Company Benefit Plan, (iv) result in any forgiveness of indebtedness of any employee of the Company or any of its Subsidiaries, or (v) result in any payment (whether in cash or property or the vesting of property) to any “disqualified individual” (within the meaning of Section 280G of the Code) that would reasonably be expected to, individually or in combination with any other such payment, constitute an “excess parachute payment” (within the aggregate, to be material to meaning of Section 280G(b)(1) of the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accruedCode).
(g) Neither the Company nor any of its Subsidiaries maintains any obligation to gross-up or reimburse any employee of the Company or any of its Subsidiaries for any Tax or related interest or penalties incurred by such individual, including under Section 409A or 4999 of the Code or otherwise.
(h) Each Company Benefit Plan that constitutes in any part a “non-qualified nonqualified deferred compensation plan” (as defined in plan within the meaning of Section 409A(d)(1) 409A of the Code) Code has been operated and maintained, in form and operation, maintained in all material respects in accordance in all respects operational and documentary compliance with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Codethereunder.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Plan.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i2.17(a) of the Seller Disclosure Letter lists Schedule sets forth a true and correct list of all material Company Plans, Benefit Plans and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) whether the plan is provided to employees outside of the Seller Disclosure Letter lists each material Seller Benefit PlanUnited States. With respect to each such Company Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) summaries of (i) the plan and trust documents (with all amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan description, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory or opinion letter. With respect to each material Seller such Company Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Group.
(b) Each Company Benefit Plan intended to be qualified under Section section 401(a) of the Code, and the trust (if any) forming a part thereof, has received a favorable determination or opinion letter from the IRS and, to the Knowledge of Seller, there are no existing circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Planopinion letter. Each Company Benefit Plan has been established, maintained, funded, administered funded and operated in all material respects in accordance with its terms and applicable Law in all material respects.
(i) No material liability under Title IV of ERISA or with applicable Law. No Target respect to any Company Benefit Plan that provides or promises benefits beyond retirement or other termination of service, except for coverage mandated by Section 4980B of the Code or similar state law has incurred, and been or is not reasonably expected to incurbe incurred by the Acquired Companies (other than periodic premiums, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 all of which have been paid prior to the Code. due date thereof).
(ii) Except as would not reasonably be expectednot, individually or in the aggregate, to be result in a material liability to the Business or the Target Acquired Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(cA) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any Employee who is a participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit PlanPlans, or otherwise involving any Employee who is a participant in any Company Benefit Plan, and (B) none of the Company Benefit Plans andis presently under audit or examination (nor has notice been received of a potential audit or examination) by the IRS, the Department of Labor, or any other Governmental Authority, domestic or foreign.
(iii) No Acquired Company contributes to or is obligated to contribute to a Multiemployer Plan or a “multiple employer plan” within the meaning of section 4063 or 4064 of ERISA, in each case with respect to Business the Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expectednot, individually or in the aggregate, to be result in a material liability to the Business or the Target Acquired Companies, taken as a whole(x) no event has occurred, all contributions and, to the Knowledge of Seller, no condition or payments required circumstances exists, that could reasonably be expected to be made by a Target subject the Acquired Companies or any Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintainedto penalties or excise taxes under Sections 4980D, in form and operation4980H, in all material respects in accordance in all respects with Section 409A or 4980I of the Code and applicable guidance or under any provision of the Department of Treasury Affordable Care Act and Internal Revenue Service; (y) the Acquired Companies have maintained adequate records to enable the Acquired Companies to comply with any reporting obligations it may have under Sections 6055 and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 6056 of the Code.
(hv) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither Neither the execution, delivery and performance of this Agreement by the Transferred Companies Seller nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) (A) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding vesting or timing of payment of any compensation or benefits payable, payable to or in respect of any current Employee or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Benefit Plan, (B) require any of the Acquired Companies to fund any liabilities or place in trust or otherwise set aside any amounts in respect of any Company Benefit Plan, (C) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code (or any comparable provision of state, local or foreign Tax Laws), (D) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code (or any comparable provision of state, local or foreign Tax Laws), or (E) any obligation to withhold Taxes pursuant to Section 4999 of the Code (or any comparable provision of state, local or foreign Tax Laws).
(ivi) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, thatwould not, individually or in the aggregate, result in a material liability to the Acquired Companies, each Company Benefit Plan maintained outside of the United States (A) if intended to qualify for special tax treatment, meets all the requirements for such treatment and no event has occurred that could reasonably be characterized expected to adversely affect such special tax treatment, (B) if required to be registered or approved by any Governmental Authority, has been so registered or approved and has been maintained in good standing with applicable Governmental Authorities, and (C) if required to be funded, book-reserved or secured by an insurance policy, is fully-funded, book-reserved or secured by an insurance policy, as an applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles.
(vii) Each Company Benefit Plan that provides for deferred compensation within the meaning of Section 409A of the Code is either exempt from the application thereof, or is and at all times has in all material respects been in documentary and operational compliance with Section 409A of the Code and the applicable guidance issued thereunder.
(viii) No Company Benefit Plan is a “excess parachute paymentpension plan” (as defined in under applicable Canadian pension benefits legislation, whether or not such plan is eligible for registration thereunder.
(ix) None of the Acquired Companies have any liability for and no Company Benefit Plan provides benefits, including life insurance, health, medical or other welfare benefits with respect to Canadian Employees or former Canadian Employees of such Acquired Company or its beneficiaries or dependents thereof beyond their retirement or other termination of service, and there has been no binding commitment to Canadian Employees by such Acquired Company which promised or guaranteed retiree health or life insurance or other retiree welfare benefits.
(x) No Acquired Company is required to provide any gross up, make whole, or other additional payment with respect to Taxes, interest or penalties imposed under Section 280G 409A or Section 4999 of the Code). The transactions contemplated by this Agreement will not constitute a change in ownership or control of Seller described in Section 280G(b)(2)(A) of the Code and Treasury Regulations Section Q/A 27, 28, or 29.
(d) The representations and warranties set forth in this Section 2.17 are the sole and exclusive representations made by Seller relating to employee benefits matters.
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i3.11(a)(i) of the Seller Company Disclosure Letter lists all material Company Benefit Plans. “Company Benefit Plans” means (i) all employee or director benefit plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. programs, policies, agreements or other arrangements, including any employee welfare plan within the meaning of Section 2.16(a)(ii3(1) of the Seller Disclosure Letter lists each material Seller Benefit Plan. With respect to each such Company PlanEmployee Retirement Income Security Act of 1974, Seller has made available to Buyer complete and correct copies as amended (to the extent applicable) of (i) the plan and trust documents (with all amendments thereto“ERISA”), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) any employee pension benefit plan within the most recent summary plan description, meaning of Section 3(2) of ERISA and (iii) the most recent actuarial reportany material bonus, financial statements and annual report on Form 5500 and commission, incentive, deferred compensation, vacation, stock purchase, stock option, restricted stock or other equity based award, severance, retirement savings, paid time off, employment, change of control or fringe plan or any other employee benefit plan, program, policy or agreement (iv) the most recent IRS determinationwhether or not written), advisory or opinion letter. With respect to in each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) case that as of the date of this Agreement are sponsored, maintained or contributed to by the Company or any of its Subsidiaries for the benefit of current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Company, and none provide benefits to or cover former employees, officers, directors or individual service providers officers of the Retained Business or Seller Group.
(b) Each Benefit Plan 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 and, to the Knowledge of Seller, there are no circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or its Subsidiaries (other than any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a “multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c4001(a)(3) of ERISA (“Multiemployer Plan”)) or to which the Company or its Subsidiaries has any liabilities or potential liabilities; provided, however, that Company Benefit Plans shall not include any Company Foreign Plan. For purposes of this Agreement, the term “Company Foreign Plan” shall refer to each plan, program, policy, agreement or Contract that is subject to or governed by the Laws of any jurisdiction other than the United States, and which would have been treated as a Company Benefit Plan had it been a United States plan, program, policy, agreement or Contract; provided that Company Foreign Plan shall not include any plan, program or entitlement (such as a Social Security-type benefit) that arises under operation of applicable Law. Section 3.11(a)(ii) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(d) No Company Plan and, Disclosure Letter lists all material Company Foreign Plans with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any of which the Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective its Subsidiaries has or (ii) could reasonably be expected to have any increased or accelerated funding obligation with respect to any Company Planliabilities.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i2.17(a) of the Seller Disclosure Letter lists all material sets forth an accurate and complete list of each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) and each other employee benefit plan, program, agreement or arrangement providing benefits to current or former employees (including any bonus plan, plan for deferred compensation, retirement, severance, sick leave, employee health or other welfare benefit plan or other arrangement, whether written or oral, involving direct or indirect benefits, other than salary or straight time compensation, as compensation for services rendered), maintained, sponsored, or contributed to by any Acquired Company Plansat any time within the past five years, and separately identifies each U.S. or with respect to which any Acquired Company Plan and Non-U.S. Company Plan by jurisdictionhas any Liability or potential Liability. Each such item listed on Section 2.16(a)(ii2.17(a) of the Seller Disclosure Letter lists each material Seller Benefit is referred to herein as a “Plan. With respect to each such Company Plan, Seller has made available to Buyer complete and correct copies .”
(to the extent applicableb) of (i) the plan and trust documents (with all amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan description, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in set forth on Section 2.16(a)(iii2.17(b) of the Seller Disclosure Letter, all no Acquired Company Plans are sponsored by has any obligation to contribute to (or any other Liability, including current or potential withdrawal liability, with respect to) any “multiemployer plan” (as defined in Section 3(37) of ERISA) or any employee benefit plan which is a Target Company“defined benefit plan” (as defined in Section 3(35) of ERISA), and none provide benefits that is subject to Title IV of ERISA, whether or cover employees, officers, directors or individual service providers not terminated. No “accumulated funding deficiency” (determined under the rules set forth in Section 412 of the Retained Business Code and related Code sections and regulations), whether or Seller Groupnot waived, exists with respect to any Plan subject to Title IV of ERISA. There have not, within the past five years, been any “reportable events” (within the meaning of Section 4043 of ERISA) with respect to any subject to Title IV of ERISA.
(bc) Except as set forth on Section 2.17(c) of the Seller Disclosure Letter, no Acquired Company has any obligation under any Plan or otherwise to provide medical, health, life insurance or other welfare type benefits to current or future retired or terminated employees (except for limited continued medical benefit coverage required to be provided under Section 4980B of the Code or as required under applicable state Law). With respect to any Plan program or arrangement set forth on Section 2.17 of the Seller Disclosure Letter that provides for post-employment medical, life insurance or other welfare-type benefits, the applicable Acquired Company has reserved the right to amend, modify or terminate such plans in its sole discretion.
(d) Except as set forth on Section 2.17(d) of the Seller Disclosure Letter, no Acquired Company maintains, contributes to or has any Liability or potential Liability under (or with respect to) any employee benefit plan which is a “defined contribution plan” (as defined in Section 3(34) of ERISA), whether or not terminated.
(e) With respect to the Plans, all required payments, premiums, contributions, reimbursements or accruals for all periods ending prior to or as of the Closing shall have been made or properly accrued on the balance sheet included in the Interim Financial Statements. None of the Plans has any material unfunded liabilities which are not reflected on such balance sheet.
(f) The Plans and all related trusts, insurance contracts and funds have been maintained, funded and administered in compliance in all material respects with their terms, the terms of any applicable collective bargaining agreement and with the applicable provisions of ERISA, the Code and other applicable Laws. No Acquired Company nor, to Seller’s Knowledge, any trustee or administrator of any Plan has engaged in any transaction with respect to the Plans which would subject any Acquired Company or any trustee or administrator of the Plans, or any party dealing with any such Plan, nor do the transactions contemplated by this Agreement constitute transactions which would subject any such party, to either a civil penalty assessed pursuant to Section 502(i) of ERISA or the tax or penalty on prohibited transactions imposed by Section 4975 of the Code. No actions, suits or claims with respect to the assets of the Plans (other than routine claims for benefits) are pending or, to Seller’s Knowledge, threatened which could result in or subject the Acquired Companies to any material Liability and there are no circumstances which would give rise to or be expected to give rise to any such actions, suits or claims.
(g) Each Benefit Plan of the Plans which is intended to be qualified under Section 401(a) of the Code, and the trust (if any) forming a part thereof, Code has received a favorable determination letter from the IRS United States Internal Revenue Service (the “IRS”) that such plan is qualified under Section 401(a) of the Code, and, to the Knowledge of Seller’s Knowledge, there are no circumstances or events that which would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification qualified status of any such Benefit Plan. Each Benefit such Plan has been established, maintained, funded, administered timely amended to comply with the provisions of recent legislation commonly referred to as “GUST” and operated in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit planEGTRRA” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities submitted to the extent such approval is available. Except as would not reasonably be expected, individually IRS for a determination or in opinion letter that takes the aggregate, to be material to GUST amendments into account within the Business or the Target Companies, taken as a whole, all contributions or payments required to be made applicable remedial amendment period specified by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(gSection 401(b) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h) Seller has delivered or made available to Buyer complete and correct copies of the Seller Disclosure Letterplan documents and summary plan descriptions, neither the executionmost recent determination letter received from the IRS, delivery the most recent annual report (Form 5500, with all applicable attachments), and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any all related trust agreements, insurance contracts, and other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company arrangements that implement each Plan.
(i) Except as set forth in on Section 2.16(i2.17(i) of the Seller Disclosure Letter, no payment none of the Plans provide any separation, severance, termination or deemed payment by the Transferred Companies similar benefit or accelerate any of their respective Subsidiaries will arise vesting schedule or be made alter any benefit structure solely as a result (either alone of a change in control of ownership within the meaning of any such Plan or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i2.16(a) of the Seller Company Disclosure Letter lists all material Company Benefit Plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit Plan. With respect to each such material Company Benefit Plan, Seller the Company has made available to Buyer Investor complete and correct copies (to the extent applicable) of (i) the plan and trust documents (with all amendments thereto), and the related insurance contracts or any other funding arrangements, or, if unwritten, a written description of the material terms thereof, (iiinstruments) the most recent summary plan description, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries and any summary of material modificationsmodifications thereto), or a written summary of (ii) the material terms thereof. Except as described in Section 2.16(a)(iiimost recent annual report (Form 5500 series), (iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Companymost recent IRS determination letter, and none provide benefits to (iv) any non-routine correspondence with any Governmental Authority received in the last 3 years. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or cover employees, officers, directors or individual service providers of the Retained Business or Seller Groupconfidential.
(b) No Company Benefit Plan is, and neither the Company nor any of its Subsidiaries has any Liability (including on account of an ERISA Affiliate) with respect to, (i) a Multiemployer Plan, (ii) a plan that is or was subject to Section 302 or Title IV of ERISA or Section 412 of the Code, (iii) a multiple employer plan (as described in Section 413(c) of the Code); or (iv) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). No Company Benefit Plan provides, and neither the Company nor any of its Subsidiaries has any Liability to provide, retiree or post-termination health or other welfare benefits to former employees of the Company or any of its Subsidiaries or any other Person, other than health continuation coverage pursuant to Section 4980B of the Code.
(c) Each Company Benefit Plan has been established, maintained, funded and administered in all material respects in compliance with its terms, the applicable requirements of ERISA, the Code and any other applicable Law. Each Company Benefit Plan 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 and, to the Knowledge of Sellerthe Company, there are no existing circumstances or events that would could reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect qualified status. Neither the qualification Company nor any of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company Subsidiaries has incurred, and is not or could reasonably expected expect to incur, any material penalty or Tax (whether or not assessed) under Sections Section 4980B, 4980D, 4980H, 4980H 6721 or 6722 of the Code. Except as would not reasonably be expectedWith respect to each Company Benefit Plan, individually or the Company and its Subsidiaries have timely made in the aggregate, to be all material to the Business or the Target Companies, taken as a whole, respects all required contributions, assessments, reimbursements, distributions, premiums and premium other payments and benefit payments that are due with respect to each have properly accrued any amounts not yet due. All options and restricted stock units listed in Section 2.4(a) of the Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, Disclosure Letter have been timely made, issued under and in compliance in all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance material respects with GAAP the Incentive Plan and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) . As of the Code or similar union sponsored pension plan outside of date hereof, up to 9,000,000 Shares remain available for issuance under the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISAIncentive Plan.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other Other than routine claims for benefits, there are no pending or, to the Knowledge of Sellerthe Company, threatened actions, audits, investigations, litigation, proceedings, disputes litigations or claims by or on behalf of any participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit PlanPlans, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, Plan or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, that could reasonably be expected to result in any material Liability to the Company or any of its Subsidiaries.
(fe) Without limiting the generality of Section 2.16(a) through Section 2.16(e)the foregoing, with respect to each Non-U.S. Company Benefit Plan that is subject to the laws of a jurisdiction other than the United States (a “Foreign Plan”): (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) each Foreign Plan required to be registered has been registered and has been maintained in good standing in all material respect respects with applicable regulatory authorities authorities; (ii) each Foreign Plan intended to receive favorable tax treatment under applicable tax laws has been qualified or similarly determined to satisfy the requirements of such tax laws; (iii) no Foreign Plan is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA); and (iv) no Foreign Plan has any material unfunded liabilities that are not reflected or reserved against on the Audited Financial Statements or the Unaudited Financial Statements, nor are such unfunded liabilities reasonably expected to arise in connection with the transactions contemplated by this Agreement. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is approved both (i) not material and (ii) is the type that the registrant treats as private or confidential.
(f) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by any applicable taxation authorities to the extent such approval is available. Except as this Agreement would not reasonably be expectedexpected to, either alone or in combination with any other event, (i) result in any payment becoming due to any employee of the Company or any of its Subsidiaries or pursuant to any Company Benefit Plan, (ii) increase any benefits under any Company Benefit Plan, (iii) result in the acceleration of the time of payment, vesting or funding or increase the amount of, any compensation or benefits due to any employee of the Company or any of its Subsidiaries or under any Company Benefit Plan, (iv) result in any forgiveness of indebtedness of any employee of the Company or any of its Subsidiaries, or (v) result in any payment (whether in cash or property or the vesting of property) to any “disqualified individual” (within the meaning of Section 280G of the Code) that would reasonably be expected to, individually or in combination with any other such payment, constitute an “excess parachute payment” (within the aggregate, to be material to meaning of Section 280G(b)(1) of the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accruedCode).
(g) Neither the Company nor any of its Subsidiaries maintains any obligation to gross-up or reimburse any employee of the Company or any of its Subsidiaries for any Tax or related interest or penalties incurred by such individual, including under Section 409A or 4999 of the Code or otherwise.
(h) Each Company Benefit Plan that constitutes in any part a “non-qualified nonqualified deferred compensation plan” (as defined in plan within the meaning of Section 409A(d)(1) 409A of the Code) Code has been operated and maintained, in form and operation, maintained in all material respects in accordance in all respects operational and documentary compliance with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Codethereunder.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Plan.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).
Appears in 1 contract
Samples: Framework Agreement (Twilio Inc)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i3.15(a) of the Seller OUTD Disclosure Letter lists all material Company PlansSchedule sets forth a true, correct and separately identifies complete list of each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller OUTD Benefit Plan. With respect to each such Company OUTD Benefit Plan, Seller OUTD has provided or made available to Buyer Parent a current, accurate and complete and correct copies (copy thereof, and, to the extent applicable) of : (i) the plan and any related trust documents (with all amendments thereto), and the related insurance contracts agreement or other funding arrangements, or, if unwritten, a written description of the material terms thereof, instrument; (ii) the most recent summary plan descriptiondetermination letter, if applicable; (iii) the most recent actuarial report, financial statements any summary plan description and annual report on Form 5500 summaries of material modifications; and (iv) the two most recent IRS determinationyears’ Form 5500 and attached schedules and audited financial statements, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Groupif any.
(b) Each OUTD Benefit Plan intended to be qualified under “qualified” within the meaning of Section 401(a) of the Code, and the trust (if any) forming a part thereof, Code has received a favorable determination determination, opinion, notification or advisory letter from the IRS as to its qualification and, to the Knowledge knowledge of SellerOUTD, there are no circumstances or events event has occurred that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Planqualification. Each of the OUTD Benefit Plan Plans has been established, maintained, funded, operated and administered and operated in all material respects in accordance with its terms and with all applicable Law. No Target Company has incurredLaws, including ERISA and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would No material liability under Title IV of ERISA has been incurred by OUTD, any OUTD Subsidiary or any ERISA Affiliate of OUTD that has not reasonably be expected, individually or been satisfied in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due full (other than with respect to each Company Planamounts not yet due). There are no pending or, and with respect to the Business Employeesknowledge of OUTD, each Seller threatened, material claims by or on behalf of any of the OUTD Benefit PlanPlans, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Lawsby any employee or beneficiary covered under any OUTD Benefit Plan or otherwise involving any OUTD Benefit Plan (other than routine claims for benefits).
(c) No Benefit Plan is, and no Target Company or Neither OUTD nor any ERISA Affiliate or any predecessor thereof maintains, contributes to, sponsors (to or has in been obligated to contribute during the past preceding six years maintained, contributed to, or sponsored), or has to any current or contingent liability or obligation with respect to or under: (i) a “multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan,” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40section 3(37) of ERISA.
(d) No Company OUTD Benefit Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance or death benefits following to current or former employees of OUTD or any of its Subsidiaries beyond their retirement or other termination of employment or service of any Person, or to any other Personservice, other than as coverage mandated by COBRA or required to avoid the excise tax under Section 4980B of the Code Code, or employer-subsidized COBRA premiums as required coverage mandated by an employment agreement covering a Business Employee that any similar state group health plan continuation Law, the cost of which is disclosed on Section 2.16(a) of the Seller Disclosure Letterfully paid by such current or former employees or their dependents.
(e) Except as would not reasonably be expectedset forth in Section 3.15(e) of the OUTD Disclosure Schedule, individually neither the execution of this Agreement or the consummation of the Transaction by OUTD (alone or in conjunction with any other event, including any termination of employment on or following the aggregateEffective Time) will (i) entitle any current or former director, officer, employee or independent contractor of OUTD or any OUTD Subsidiary to be any material to compensation or benefit, (ii) accelerate the Business time of payment or the Target Companiesvesting, taken as a wholeor trigger any payment or funding, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant material compensation or benefits or trigger any other material obligation under any OUTD Benefit Plan or (iii) result in any of the Company Plans andmaterial breach or violation of, with respect default under or limit OUTD’s right to Business Employeesamend, each Seller Benefit Plan, modify or otherwise involving terminate any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller OUTD Benefit Plan.
(f) Without limiting Except as set forth in Section 3.15(f) of the generality OUTD Disclosure Schedule, no amount or other entitlement that could be received as a result of Section 2.16(athe Transaction (alone or in conjunction with any other event) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plandisqualified individual” (as defined in Section 409A(d)(1280G(c) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, OUTD would reasonably be expected to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Plan.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as constitute an “excess parachute payment” (as defined in Section 280G 280G(b)(1) of the Code). No director, officer, employee or independent contractor of OUTD or any OUTD Subsidiary is entitled to receive any gross-up or additional payment by reason of the Tax required by Section 409A or 4999 of the Code being imposed on such Person.
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i3.13(a) of the Seller Company Disclosure Letter lists sets forth as of the date of this Agreement a true, correct and complete list of material Company Benefit Plans, including all material Company PlansBenefit Plans subject to the Employee Retirement Income Security Act of 1974, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit Planas amended (“ERISA”). With respect to each such material Company Benefit Plan, Seller the Company has made available to Buyer Parent prior to the date hereof a true, correct and complete and correct copies (copy of such written Company Benefit Plan or a written description of the material terms of any such unwritten Company Benefit Plan and, to the extent applicable) of , (i) the plan and all material trust documents (with all amendments thereto)agreements, and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the two most recent summary plan descriptionactuarial and trust reports for both ERISA funding and financial statement purposes, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and with all attachments filed with the Internal Revenue Service (“IRS”) or the Department of Labor, (iv) the most recent IRS determination, advisory determination letter (or opinion letter. With respect letter upon which the Company is entitled to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments theretorely), and the most recent (v) all current summary plan description (with all descriptions, and summaries of material modifications)modification thereto and (vi) all correspondence relating to any such Company Benefit Plan between the Company, any of its Subsidiaries or a written summary their representatives and any Governmental Entity regarding any matter that remains unresolved as of the material terms thereofdate of this Agreement. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all “Company Plans are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Group.
(b) Each Benefit Plan 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 and, to the Knowledge of Seller, there are no circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to Plans” means each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined employee benefit plan, scheme, program, policy, arrangement and contract (including any “employee benefit plan,” as defined in Section 3(353(3) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(d) No Company Plan andand any bonus, with respect to Business Employeesdeferred compensation, no Seller Benefit Planstock bonus, provides healthstock purchase, medicalrestricted stock, dental or life insurance benefits following retirement stock option or other termination of employment equity-based arrangement, and any employment, termination, retention, bonus, change in control or service of severance agreement, plan, program, policy, arrangement or contract) under which any Personcurrent or former director, officer, individual independent contractor, consultant or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any employee of the Company Plans andor any of its Subsidiaries has any present or future right to benefits, with respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, that is maintained, funded and administered in accordance with sponsored or contributed to by the Company or any of its terms and all applicable Laws Subsidiaries or which the Company or any of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company its Subsidiaries has any obligation to gross-upmaintain, indemnify sponsor or otherwise reimburse any individual contribute, or with respect to any Tax, including under Section 409A or 4999 of which the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies Company or any of their respective its Subsidiaries would incur any direct or (ii) any increased or accelerated funding obligation with respect to any Company Planindirect liability.
(i) Except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code).
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i) The SEC Reports list or describe each Plan that the Company or any of its Subsidiaries maintains or to which the Seller Disclosure Letter lists all material Company or any of its Subsidiaries contributes (the “Company Plans, and separately identifies each U.S. ”). Neither the Company Plan and Non-U.S. nor any of its Subsidiaries has any liability under any Plans other than the Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit Plan. With respect to each such Company Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of (i) the plan and trust documents (with all amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan description, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereofPlans. Except as described in or incorporated by reference in the SEC Reports, neither the Company nor any Commonly Controlled Entity maintains or contributes to, or has within the preceding six years maintained or contributed to, or may have any liability with respect to any Plan subject to Title IV of ERISA or Section 2.16(a)(iii) 412 of the Seller Disclosure LetterCode or any “multiple employer plan” within the meaning of the Code or ERISA. Each Company Plan (and related trust, all Company Plans are sponsored by a Target Companyinsurance contract or fund) has been established and administered in accordance with its terms, and none provide benefits complies in form and in operation with the applicable requirements of ERISA and the Code and other applicable Requirements of Law. All contributions (including all employer contributions and employee salary reduction contributions) which are due have been paid to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Groupeach Company Plan.
(b) Each Benefit No Claim with respect to the administration or the investment of the assets of any Company Plan (other than routine claims for benefits) is pending.
(c) Except as could not reasonably be expected to have a Company Material Adverse Effect, each Company Plan that is intended to be qualified under Section 401(a) of the Code, Code is so qualified and the trust (if any) forming a part thereof, has received a favorable determination letter from the IRS and, to the Knowledge of Seller, there are no circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with so qualified during the period since its terms and with applicable Law. No Target Company has incurred, and adoption; each trust created under any such Plan is not reasonably expected to incur, any material penalty or Tax exempt from tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f501(a) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISAand has been so exempt since its creation.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit is a Retiree Welfare Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in Neither the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any consummation of the Company Plans and, with respect to Business Employees, each Seller Benefit PlanTransactions contemplated by this Agreement nor any termination of employment following such Transactions will accelerate the time of the payment or vesting of, or otherwise involving increase the amount of, compensation Table of Contents due to any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, employee or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, former employee whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as payment would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a constitute an “non-qualified deferred compensation planexcess parachute payment” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 280G of the Code.
(hf) There are no unfunded obligations under any Company Plan which are not fully reflected in the Financial Statements.
(g) Except as set forth in Section 2.16(h) of could not reasonably be expected to have a Company Material Adverse Effect, the Seller Disclosure LetterCompany has no liability, neither the executionwhether absolute or contingent, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with including any other event) result in (i) obligations under any payment (whether in cashCompany Plan, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Planmisclassification of any person as an independent contractor rather than as an employee.
(ih) Except as set forth The Company has the necessary and requisite authority to take the actions contemplated in Section 2.16(iSections 1.09(a) and (b) pursuant to the terms of the Seller Disclosure Letter, applicable Company Stock Option Plans and agreements evidencing the grant of Company Restricted Shares and Company Options and no payment consent is required of holders of Company Options or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code)Company Restricted Shares to effect such actions.
Appears in 1 contract
Samples: Merger Agreement (Critical Path Inc)
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i) The SEC Reports list or describe each Plan that the Company or any of its Subsidiaries maintains or to which the Seller Disclosure Letter lists all material Company or any of its Subsidiaries contributes (the “Company Plans, and separately identifies each U.S. ”). Neither the Company Plan and Non-U.S. nor any of its Subsidiaries has any liability under any Plans other than the Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit Plan. With respect to each such Company Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of (i) the plan and trust documents (with all amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, a written description of the material terms thereof, (ii) the most recent summary plan description, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 and (iv) the most recent IRS determination, advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicable) of the current plan and trust documents (with all amendments thereto), and the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereofPlans. Except as described in or incorporated by reference in the SEC Reports, neither the Company nor any Commonly Controlled Entity maintains or contributes to, or has within the preceding six years maintained or contributed to, or may have any liability with respect to any Plan subject to Title IV of ERISA or Section 2.16(a)(iii) 412 of the Seller Disclosure LetterCode or any “multiple employer plan” within the meaning of the Code or ERISA. Each Company Plan (and related trust, all Company Plans are sponsored by a Target Companyinsurance contract or fund) has been established and administered in accordance with its terms, and none provide benefits complies in form and in operation with the applicable requirements of ERISA and the Code and other applicable Requirements of Law. All contributions (including all employer contributions and employee salary reduction contributions) which are due have been paid to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Groupeach Company Plan.
(b) Each Benefit No Claim with respect to the administration or the investment of the assets of any Company Plan (other than routine claims for benefits) is pending.
(c) Except as could not reasonably be expected to have a Company Material Adverse Effect, each Company Plan that is intended to be qualified under Section 401(a) of the Code, Code is so qualified and the trust (if any) forming a part thereof, has received a favorable determination letter from the IRS and, to the Knowledge of Seller, there are no circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with so qualified during the period since its terms and with applicable Law. No Target Company has incurred, and adoption; each trust created under any such Plan is not reasonably expected to incur, any material penalty or Tax exempt from tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in the past six years maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f501(a) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA or (y) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISAand has been so exempt since its creation.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit is a Retiree Welfare Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in Neither the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any consummation of the Company Plans and, with respect to Business Employees, each Seller Benefit PlanTransactions contemplated by this Agreement nor any termination of employment following such Transactions will accelerate the time of the payment or vesting of, or otherwise involving increase the amount of, compensation due to any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, employee or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, former employee whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as payment would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a constitute an “non-qualified deferred compensation planexcess parachute payment” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 280G of the Code.
(hf) There are no unfunded obligations under any Company Plan which are not fully reflected in the Financial Statements.
(g) Except as set forth in Section 2.16(h) of could not reasonably be expected to have a Company Material Adverse Effect, the Seller Disclosure LetterCompany has no liability, neither the executionwhether absolute or contingent, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with including any other event) result in (i) obligations under any payment (whether in cashCompany Plan, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Planmisclassification of any person as an independent contractor rather than as an employee.
(ih) Except as set forth The Company has the necessary and requisite authority to take the actions contemplated in Section 2.16(iSections 1.09(a) and (b) pursuant to the terms of the Seller Disclosure Letter, applicable Company Stock Option Plans and agreements evidencing the grant of Company Restricted Shares and Company Options and no payment consent is required of holders of Company Options or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G of the Code)Company Restricted Shares to effect such actions.
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section Schedule 2.16(a)(i) includes a current, complete and accurate list of the Seller Disclosure Letter lists all material each Company PlansPlan (other than plans having a de minimis cost), and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdictionPlan. Section Schedule 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit PlanPlan (other than plans having a de minimis cost). With respect to each such Company Plan, Seller has the Sellers have made available to Buyer complete and correct copies (to the extent applicable) of (i) the plan and trust documents (with all amendments thereto), and or in the related insurance contracts or other funding arrangements, or, if unwrittencase of an unwritten Company Plan, a written description of the material terms thereof) and trust documents (with all amendments thereto) , and any custodial agreements, insurance policies or contracts, (ii) the most recent summary plan descriptiondescription and any amendments or summaries of material modifications with respect thereto (or with respect to a Non-U.S. Company Plan, a written summary of material benefits) and the most recent actuarial reports with respect thereto, (iii) the most recent actuarial report, financial statements and annual report on Form 5500 (with all schedules and attachments, including financial statements), (iv) the most recent IRS determination, advisory or opinion letter, and (v) the most recent material notices, letters, filings, and correspondence with all Governmental Authorities. With respect to each material Seller Benefit Plan, the applicable Seller has made available to Buyer complete and correct copies (to the extent applicable) of (1) the current plan (or in the case of an unwritten Seller Plan, a written description of the material terms thereof) and trust documents (with all amendments thereto), and (2) the most recent summary plan description description, (3) the most recent annual report on Form 5500 (with all summaries of material modificationsschedules and attachments, including financial statements), (4) the most recent IRS determination, advisory or a written summary of opinion letter and (5) the most recent material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letternotices, all Company Plans are sponsored by a Target Companyletters, filings, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Groupcorrespondence with all Government Authorities.
(b) Each Benefit U.S. Company Plan and Seller Plan 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 or opinion letter from the IRS and, to the Knowledge of Sellerthe Sellers, there are no existing circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification of such Benefit Planletter. Each Benefit U.S. Company Plan has been established, maintained, funded, operated, maintained and administered and operated in compliance in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, including ERISA and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(c) No Benefit Plan is, and no Target Company or any ERISA Affiliate thereof maintains, contributes to, sponsors (or has in member of the past six years maintained, contributed Seller Group is obligated to contribute to, or sponsored), has or has could incur any current or contingent liability or obligation material Liability with respect to or under: to, (i) a multiemployer plan plan, as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code or similar union sponsored pension plan outside of the U.S.; or ERISA, (ii) a “defined employee benefit plan” as defined in Section 3(35) of ERISA or a plan that is subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is , (xiii) a “multiple employer plan” (within the meaning of Section 413(c) 413 of the Code or Section 210 of ERISA or Code), (yiv) a “multiple employer welfare arrangement” as defined in (within the meaning of Section 3(40) of ERISA.
) or (dv) No Company Plan and, a plan maintained in connection with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under a trust described in Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a501(c)(9) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expectedCode, individually or in the aggregateeach case, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any Business Employee or that could give rise to a material Liability of the Company Plans and, with Target Companies at or following the Closing. With respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable guidance of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with any other event) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, to or in respect of any current or former employee, officer, director or independent contractor of any of the Transferred Subject Companies or any of their respective Subsidiaries ERISA Affiliates, there does not exist, nor do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would result in any Liability, at or (ii) any increased after the Closing, to Buyer or accelerated funding obligation with respect the Subject Companies, in an amount that would reasonably be expected to any Company Plan.
(i) Except as set forth in Section 2.16(i) of be material to the Seller Disclosure LetterSubject Companies and the Business, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made taken as a result (either alone or in combination with any other event) whole. For purposes of the execution, delivery and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that“Controlled Group Liability” means any and all Liabilities under Title IV of ERISA, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in Section 280G 412 of the Code)Code or Section 302 of ERISA.
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(i3.19(a) of the Seller Company Disclosure Letter lists all Schedule sets forth a complete and correct list of the material Company Plans, and separately identifies each U.S. Benefit Plans (including but not limited to all Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit PlanPlans subject to ERISA). With respect to each such Company Benefit Plan, Seller the Company has made available to Buyer Parent true and complete copies or materially accurate summaries of each of the Company Benefit Plans that has not been previously filed with the SEC and correct copies (to the extent applicable) of (i) the plan and trust documents (with each writing constituting a part of such Company Benefit Plan, including all amendments thereto), and the all related trust documents, insurance contracts contracts, insurance policies or other documents of any funding arrangements, or, if unwritten, a written description of the material terms thereof, arrangements (ii) the most recent summary plan descriptiondescription together with the summary or summaries of material modifications thereto, if any, (iii) the most recent annual actuarial reportvaluations, financial statements and annual report on Form 5500 and if any, (iv) the most recent Annual Report (Form 5500 Series) and accompanying schedules, if any, (v) all IRS or Department of Labor (“DOL”) determination, opinion, notification and advisory or opinion letter. With respect to each material Seller Benefit Plan, Seller has made available to Buyer complete and correct copies letters (to the extent if applicable) of the current plan and trust documents (with all amendments thereto), (vi) all material correspondence to or from any Governmental Entity received in the last three years relating to compliance issues in respect of any such Company Benefit Plan and (vii) all discrimination tests for the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Company, and none provide benefits to or cover employees, officers, directors or individual service providers of the Retained Business or Seller Groupyear.
(b) Section 3.19(b) of the Company Disclosure Schedule sets forth a list of all Notes evidencing outstanding loans by the Company and any Company Subsidiary to employees or former employees.
(c) Each Company Benefit Plan intended to be qualified under Section 401(a) of the Code, and the trust (if any) forming a part thereof, is so qualified and has received a favorable determination letter from the IRS andor may rely on an opinion or advisory letter issued by the IRS, to the Knowledge of Seller, and there are no existing circumstances or any events that would could reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect the qualification qualified status of any such plan. All amendments and actions required to bring each Company Benefit PlanPlan into conformity with the applicable provisions of ERISA, the Code and other applicable Law have been made or taken within the applicable remedial amendment periods. Each Company Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company has incurredLaw including, but not limited to ERISA and is not reasonably expected to incur, any material penalty or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Laws.
(cd) No Benefit Plan isNeither the Company nor any Company Subsidiary, and no Target Company or nor any of their ERISA Affiliate thereof maintainsAffiliates, contributes to, sponsors (or maintain or has in the past six years sponsored, maintained, contributed to, or sponsored), or has any current or contingent liability or obligation with respect to or under: (i) a multiemployer had any liability in respect of any pension plan as defined in subject to Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) 412 of the Code or similar union sponsored pension plan outside Section 302 or Title IV of ERISA.
(e) There are no pending claims by or on behalf of any of the U.S.; Company Benefit Plans, by any employee or otherwise involving any such plan or the assets of any plan (iiother than routine claims for benefits). There is no action, suit, investigation, audit or proceeding pending against or involving or, to the Knowledge of the Company, threatened against or involving, any Company Benefit Plan before any Governmental Entity.
(f) No Company Benefit Plan is a “defined benefit plan” (as defined in Section 3(35414 of the Code), a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c4063 or 4064 of ERISA. Neither the Company nor any Company Subsidiary, nor any of their ERISA Affiliates, has at any time during the last six (6) years contributed to or been obligated to contribute to any such plan.
(g) No event has occurred and no condition exists that would, either directly or by reason of the Company’s or any Company Subsidiary’s affiliation with any of their ERISA Affiliates, subject the Company or any of the Company Subsidiaries to any material tax, fine, lien, penalty or other liability imposed by ERISA, the Code or other applicable Laws, rules and regulations. Neither the Company nor the Company Subsidiaries, nor any of their respective directors, officers, employees or agents, with respect to any Company Benefit Plan, has engaged in or been a party to any non-exempt “prohibited transaction” as such term is defined in Section 4975 of the Code or Section 210 406 of ERISA, which could reasonably be expected to result in the imposition of a material penalty pursuant to Section 502(i) of ERISA or (y) a “multiple employer welfare arrangement” as defined in material tax imposed by Section 3(40) of ERISA.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B 4975 of the Code Code, in each case applicable to the Company, any Company Subsidiary or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) any Company Benefit Plan or for which the Company or any Company Subsidiary has any indemnification obligation. There are no pending, threatened or, to the Knowledge of the Seller Disclosure Letter.
Company, anticipated claims (e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits) by, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in or against any of the Company Plans andBenefit Plans, with respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any trust under any Company Plans andBenefit Plan, the plan sponsor, plan administrator or any fiduciary of any Company Benefit Plan with respect to Business Employeesthe administration or operation of such plans. There are no audits, each Seller inquiries or proceedings pending or threatened by the IRS, DOL, or other Governmental Entity with respect to any Company Benefit Plan.
(fh) Without limiting All contributions or other amounts payable by the generality Company or the Company Subsidiaries with respect to each Company Benefit Plan in respect of Section 2.16(a) through Section 2.16(e), each Non-U.S. current or prior plan years have been timely paid or accrued in accordance with GAAP and the terms of the Company Plan Benefit Plans.
(i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or No payments required to be made under any Company Benefit Plan as a result of the consummation of the transactions contemplated by a Target Company to this Agreement (either alone or in combination with any benefit another event) requires any action by or compensation plan in respect of, or arrangement sponsored by a filing with any Governmental Authority have been timely made or, if not yet due, properly accruedEntity or would result in any violation of Law.
(gj) No employee or former employee of the Company or any Company Subsidiary is or may become entitled to post-employment benefits of any kind by reason of his or her employment, including, death or medical benefits (whether or not insured), other than (i) coverage mandated by Section 4980B of the Code, or (ii) retirement benefits payable under any plan qualified under Section 401(a) of the Code. Each Company Benefit Plan may be amended or terminated after the Closing Date without material cost other than for claims incurred prior to such amendment or termination.
(k) The consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event, (i) entitle any current or former employee, consultant, officer or director of the Company or of any Company Subsidiary to any compensation or benefits, severance pay, unemployment compensation, forgiveness of indebtedness, or any other payment, except with respect to Options as expressly provided in Section 1.7 hereof, (ii) except with respect to Options as expressly provided in Section 1.7 hereof, result in any payment becoming due, accelerate the time of payment or vesting, or increase the amount of compensation due to any such employee, consultant, officer or director, (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.
(l) Each Company Benefit Plan that constitutes is a “non-qualified nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated since January 1, 2005 in good faith compliance with Section 409A of the Code, and maintainedthe Treasury regulations and IRS guidance thereunder. No Company Benefit Plan that is subject to Section 409A of the Code has been materially modified (as defined under Section 409A of the Code) since October 3, 2004. No payment pursuant to any Company Benefit Plan or other agreement, policy or arrangement of the Company or any Company Subsidiaries to any “service provider” (as such term is defined in form and operation, in all material respects in accordance in all respects with Section 409A of the Code and applicable the regulations and IRS guidance promulgated thereunder), including the grant, vesting or exercise of the Department of Treasury and Internal Revenue Service; and no amount under any such Benefit Plan isstock option, or is reasonably expected to be, or has been, subject whether pursuant to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Code.
(h) Except as set forth in Section 2.16(h) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (either alone or in combination with otherwise, would subject any other eventperson to tax pursuant to Section 409A(1) result in (i) any payment (whether in cash, property or vesting of property) becoming due, the Code. All Options have been appropriately authorized by the Board of Directors of the Company or an increase in appropriate committee thereof, including approval of the amount option exercise price or the methodology for determining the exercise price and the substantive option terms, and no Options have been retroactively granted or the exercise price of any Company Stock Option determined retroactively. No Option or equity award granted under any Company Benefit Plan has an exercise price that has been or may be less than the fair market value of the underlying stock or equity units (as the case may be) as of the date such option was granted or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option.
(m) Any person providing services to the Company or any of the Company Subsidiaries who has not been classified as an employee is not eligible to participate in any Company Benefit Plan and is not entitled to receive any benefits or the acceleration of the vesting, funding other compensation under or timing of payment of pursuant to any compensation or benefits payable, to or Company Benefit Plan in respect of any current or former employeesuch non-employee service, officer, director or independent contractor of any of the Transferred Companies or any of their respective Subsidiaries or (ii) any increased or accelerated funding obligation with respect to any Company Plan.
(i) Except except as set forth in Section 2.16(i) of the Seller Disclosure Letter, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery have not had and performance of this Agreement by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, thatwould not, individually or in the aggregate, could reasonably be characterized expected to have a Material Adverse Effect on the Company.
(n) No deduction for federal income tax purposes has been nor is any such deduction expected by the Company to be disallowed for remuneration paid by the Company or any Company Subsidiary by reason of Section 162(m) of the Code, including by reason of the transaction contemplated hereby.
(o) Neither the Company nor any Company Subsidiary has any plan, contract or commitment, whether legally binding or not, or has announced (orally or in writing) an intention to create any additional employee benefit or compensation plans, policies or arrangements, or except as an “excess parachute payment” may be required by applicable Law or this Agreement, to modify, suspend or terminate any Company Benefit Plan.
(p) Section 3.19(p) of the Company Disclosure Schedule lists each Company Benefit Plan subject to ERISA as to which the Company or any Company Subsidiary is a fiduciary, as defined in Section 280G 3(21) of the Code)ERISA.
Appears in 1 contract
Employee Benefit Plans and Related Matters; ERISA. (a) Section 2.16(a)(iSchedule 3.13(a) of the Seller Disclosure Letter lists all material Company Plans, and separately identifies each U.S. Company Plan and Non-U.S. Company Plan by jurisdiction. Section 2.16(a)(ii) of the Seller Disclosure Letter lists each material Seller Benefit PlanPlans applicable to the Business. With respect to each such Company Seller Benefit Plan, the Seller has provided or made available to Buyer complete and correct copies (the Buyer, to the extent applicable) , current, accurate and complete copies of (i) the all plan documents and trust documents (with all amendments thereto), and the related insurance contracts or other funding arrangements, or, if unwritten, (ii) a written description summary of the material terms thereof, (ii) the most recent summary plan descriptionof each Seller Benefit Plan that has not been reduced to writing, (iii) the most recent actuarial reportsummary plan description for each Seller Benefit Plan and any material modifications, financial statements and annual report on Form 5500 and (iv) the most recent IRS Form 5500 and all schedules thereto, as applicable, (v) in the case of any Seller Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the IRS, (vi) where applicable, copies of any trust agreements or opinion letter. With respect other funding arrangements, custodial agreements, insurance contracts, administration agreements, and investment management or investment advisory agreements, and any amendments thereto, (vii) all material correspondence to each material or from any Governmental Authority in the last three years relating to any Seller Benefit Plan, Seller has made available to Buyer complete and correct copies (to the extent applicableviii) of the current plan and trust documents (with all amendments thereto), and non-discrimination testing results for the most recent summary plan description (with all summaries of material modifications), or a written summary of the material terms thereof. Except as described in Section 2.16(a)(iii) of the Seller Disclosure Letter, all Company Plans are sponsored by a Target Companyyear, and none provide benefits (ix) the most recent actuarial valuation and financial report related to or cover employees, officers, directors or individual service providers of the Retained Business or any Seller GroupBenefit Plan.
(b) Each Seller Benefit Plan has been established, maintained and administered in all material respects in accordance with the terms of such plan and the provisions of any and all Laws, including, ERISA and the Code. No Seller Benefit Plan could reasonably be expected to be subject to an excise Tax as a result of Section 409A of the Code.
(c) All contributions and premiums required to have been paid (whether by the Seller or any of its ERISA Affiliates or by any participant, as a reduction to salary or otherwise) to any Seller Benefit Plan under the terms of any such plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable Law (including ERISA and the Code), have been paid by the due date thereof (including any valid extension) or have been corrected without continuing Liability, and all contributions for any periods ending on or before the Closing Date that are not yet due will have been paid or accrued on or prior to the Closing Date.
(d) Each Seller Benefit Plan intended to be qualified under Section 401(a) of the CodeCode is so qualified, and the trust (if any) forming a part thereofthereof intended to be exempt from federal income taxation under Section 501 of the Code is so exempt, and nothing has received a favorable determination letter from the IRS and, occurred with respect to the Knowledge operation of Seller, there are no circumstances such Seller Benefit Plan that has caused or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter or otherwise adversely affect cause the qualification loss of such Benefit Plan. Each Benefit Plan has been established, maintained, funded, administered and operated in all material respects in accordance with its terms and with applicable Law. No Target Company has incurred, and is not reasonably expected to incur, any material penalty qualification or Tax under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all required contributions, assessments, reimbursements, distributions, and premium and benefit payments that are due with respect to each Company Plan, and with respect to the Business Employees, each Seller Benefit Plan, have been timely made, and all contributions, assessments, reimbursements, distributions, and premium and benefit payments that are not yet due have been properly accrued in accordance with GAAP and all applicable Lawsexemption.
(ce) No Seller Benefit Plan is, and no Target Company or neither the Seller nor any of its ERISA Affiliate thereof maintains, contributes to, sponsors (or Affiliates has in the past six years maintained, contributed or been obligated to contribute to, or sponsored), or has otherwise had any current or contingent liability or obligation Liability with respect to or under: to, any “employee pension benefit plan” (i) a multiemployer plan as defined in Section 3(37) or 4001(a)(33(2) of ERISA or Section 414(fERISA) of the Code or similar union sponsored pension plan outside of the U.S.; or (ii) a “defined benefit plan” as defined in Section 3(35) of ERISA or a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 312 of ERISA or ERISA, including a “multiemployer plan” (yas defined in Section 3(37) of ERISA). No Seller Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA.
(d) No Company Plan and, with respect to Business Employees, no Seller Benefit Plan, provides health, medical, dental or life insurance benefits following retirement or other termination of employment or service of any Person, or to any other Person, other than as required under Section 4980B of the Code or employer-subsidized COBRA premiums as required by an employment agreement covering a Business Employee that is disclosed on Section 2.16(a) of the Seller Disclosure Letter.
(e) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, other than routine claims for benefits, there are no pending or, to the Knowledge of Seller, threatened audits, investigations, litigation, proceedings, disputes or claims by or on behalf of any participant in any of the Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or otherwise involving any Company Plans and, with respect to Business Employees, each Seller Benefit Plan, or the assets of any Company Plans and, with respect to Business Employees, each Seller Benefit Plan.
(f) Without limiting the generality of Section 2.16(a) through Section 2.16(e), each Non-U.S. Company Plan (i) has been in all material respects established, maintained, funded and administered in accordance with its terms and all applicable Laws of any controlling Governmental Authority, (ii) that is required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in all material respects in accordance with applicable Law, (iii) is not a “defined benefit pension plan” (as defined in ERISA, whether or not subject to ERISA), or a seniority premium, termination indemnity, gratuity or similar benefit plan or arrangement that has any unfunded or underfunded liabilities, and (iv) required to be registered has been registered and has been maintained in good standing in all material respect with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Target Companies, taken as a whole, all contributions or payments required to be made by a Target Company to any benefit or compensation plan or arrangement sponsored by a Governmental Authority have been timely made or, if not yet due, properly accrued.
(g) Each Benefit Plan that constitutes a “non-qualified deferred compensation multiple employer plan” (as defined in Section 409A(d)(14063 or 4064 of ERISA).
(f) No Seller Benefit Plan provides for, and the Seller has no Liability in respect of, post-retirement medical or life insurance or other welfare benefits for retired, former or current employees of the Code) has been operated and maintained, in form and operation, in all material respects in accordance in all respects with Seller except as required to avoid excise Tax under Section 409A 4980B of the Code and applicable guidance at the sole expense of the employee.
(g) There are no actions, proceedings, audits, inquiries, claims (other than routine benefit claims) or suits pending or, to the Seller’s Knowledge, threatened in writing by, on behalf of or against any of the Seller Benefit Plans or any trusts related thereto, nor does Seller have Knowledge of facts that could form the basis for any of the foregoing. None of the Seller Benefit Plans is under audit or examination (nor has notice been received of a potential audit or examination) by the IRS, the Department of Treasury and Internal Revenue Service; and no amount under Labor or any such Benefit Plan is, or is reasonably expected to be, or has been, subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the Code. No Target Company has any obligation to gross-up, indemnify or otherwise reimburse any individual with respect to any Tax, including under Section 409A or 4999 of the Codeother Governmental Authority.
(h) Except as set forth in Section 2.16(h) of Neither the Seller Disclosure Letter, neither the execution, execution and delivery and performance of this Agreement by the Transferred Companies nor the consummation by the Transferred Companies of the transactions contemplated by this Agreement will (hereby will, either alone or in combination with any other event, (i) result in (i) any payment (whether in cash, property or vesting of property) becoming due, or an increase in the amount of compensation or benefits or the acceleration of the vesting, funding or timing of payment of any compensation or benefits payable, due to or in respect of any current or former employee, officer, director or individual independent contractor contractor, or satisfy any prerequisite (whether exclusive or non-exclusive) to any payment or benefit to any such Person, (ii) increase any benefits under any Seller Benefit Plan, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefits or (iv) create any limitation or restriction on the right of the Transferred Companies Seller or any of their respective Subsidiaries its ERISA Affiliates to merge, amend or (ii) terminate any increased or accelerated funding obligation with respect to any Company Seller Benefit Plan.
(i) Except as set forth in Section 2.16(i) Neither the execution and delivery of this Agreement nor the consummation of the Seller Disclosure Lettertransactions contemplated hereby will, no payment or deemed payment by the Transferred Companies or any of their respective Subsidiaries will arise or be made as a result (either alone or in combination with any other event) of the execution, delivery and performance of this Agreement give rise to any payments or benefits that would be nondeductible by the Transferred Companies, or the consummation by the Transferred Companies of the transactions contemplated by this Agreement, that, individually or in the aggregate, could be characterized as an “excess parachute payment” (as defined in payor under Section 280G of the Code or subject to additional Tax to the recipient under Section 4999 of the Code).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Sonoma Pharmaceuticals, Inc.)
