Employee Benefit Plans and Related Matters. (a) Schedule 4.23 sets forth a true, complete and correct list of all Benefit Plans. Seller has made available to Buyer, with respect to each Benefit Plan, true, correct and complete copies of the following documents, as applicable: (i) the Benefit Plan documents and all amendments (or, in the case of any unwritten Benefit Plan, written descriptions, including the material terms, thereof), (ii) any related trust agreements, insurance contracts or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments), (v) the most recent summary plan description and summary of material modifications concerning the extent of the benefits provided under each Benefit Plan, (vi) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, letters, or other correspondence from the Internal Revenue Service, Department of Labor, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to any Benefit Plan that have been adopted or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with applicable Law, including ERISA, the Code and the terms of any collective bargaining agreements or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program). (b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute to), or has any actual or contingent Liability under, any employee benefit plan that is (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), (ii) otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, or (iii) subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA). (c) Each Benefit Plan intended to be qualified under Section 401(a) of the Code has a current favorable determination letter (a true, correct and complete copy of which was made available to Buyer) as to its qualification or may rely on the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Benefit Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) of the Code or any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Benefit Plan that has subjected, or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEO. (d) With respect to any Benefit Plan, (i) no Proceeding (other than routine claims for benefits in the ordinary course) is pending or, to the Knowledge of Seller, threatened; (ii) to the Knowledge of Seller, no facts or circumstances exist that could give rise to any such Proceeding; and (iii) no administrative investigation, audit or other administrative proceeding by any Governmental Authority is pending, in progress or, to the Knowledge of Seller, threatened. (e) None of the execution and delivery of this Agreement or any of the other agreements contemplated hereby, or the consummation of any transaction contemplated herein or therein (alone or in combination with any other event), could (i) result in the payment to any present or former director, officer, employee or other service provider of any money or other consideration; (ii) accelerate, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase or trigger any material obligation under any Benefit Plan; (iv) result in any breach or violation of, or default or funding obligation under, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee or other service provider to Seller. (f) No deduction of any amount payable pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated in compliance with Section 409A of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred by such individual pursuant to Section 409A of the Code.
Appears in 1 contract
Employee Benefit Plans and Related Matters. (a) Schedule 4.23 sets forth a true, complete and correct list of all Benefit Plans. Seller has made available to Buyer, with respect to each Benefit Plan, true, correct and complete copies of the following documents, as applicable: (i) the Benefit Plan documents and all amendments (or, in the case of any unwritten Benefit Plan, written descriptions, including the material terms, thereof), (ii) any related trust agreements, insurance contracts or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments), (v) the most recent summary plan description and summary of material modifications concerning the extent of the benefits provided under each Benefit Plan, (vi) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, letters, or other correspondence from the Internal Revenue Service, Department of Labor, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to any Benefit Plan that have been adopted or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with applicable Law, including ERISA, the Code and the terms of any collective bargaining agreements or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute to), or has any actual or contingent Liability under, any employee benefit plan that is (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), (ii) otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, or (iii) subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA).
(c) Each Benefit Plan intended to be qualified under Section 401(a4.02(n)(i) of the Code has a current favorable determination letter (a true, correct Seller Disclosure Letter separately identifies each Seller Plan and complete copy of which was made available to Buyer) as to its qualification or may rely on the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Benefit Plan as to the tax-qualified status of such Benefit each MHPS Employee Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list true and complete copies of all qualified beneficiaries (within plan documents, summary plan descriptions, and any other documentation of each MHPS Employee Plan. Each MHPS Employee Plan has been operated and administered in all respects in accordance with its terms, all applicable Laws and the meaning terms of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Benefit Plan provides benefits, any applicable collective bargaining agreement; and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) of the Code or any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Benefit Plan that has subjected, or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEO.
(d) With respect to any Benefit Plan, (i) no Proceeding (other than routine claims for benefits in the ordinary course) is pending or, to the Knowledge of Seller, threatened; threatened actions, suits, audits, proceedings or claims by or on behalf of any of the MHPS Employee Plans, by any employee or beneficiary covered under any MHPS Employee Plan or otherwise involving any MHPS Employee Plan (ii) other than routine claims for benefits), in each case, except as, individually or in the aggregate, has not had or is not reasonably expected to have an MHPS Material Adverse Effect. No event has occurred and, to the Knowledge of Seller, no facts or circumstances exist condition exists that could give rise would subject any Group Company to any such Proceeding; and Tax, Lien, fine, penalty or other liability imposed by applicable Law, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Transferred Companies.
(ii) No MHPS Employee Plan provides health or welfare benefits (whether or not insured), with respect to current or former employees or directors of any Group Company or other Persons beyond their retirement or other termination of service, other than
(i) coverage mandated solely by applicable Law, (ii) benefits the full costs of which are borne by the current or former employee or director or other Person or (iii) no administrative investigation, audit or other administrative proceeding as required under any MHPS Employee Plan that provides long-term disability benefits that have been fully provided for by any Governmental Authority is pending, in progress or, to the Knowledge of Seller, threatenedinsurance thereunder.
(eiii) None No MHPS Employee Plan is an equity compensation plan or otherwise provides long-term incentives to any current or former employees or directors of any Group Company.
(iv) Section 4.02(n)(iv) of the Seller Disclosure Letter describe all material arrangements that, as a result of the negotiation or the execution and delivery of this Agreement or any of the other agreements contemplated hereby, or the consummation of any transaction contemplated herein or therein the Transactions (alone or in combination conjunction with any other event, including any termination of employment on or following Closing), could will (i) result in the payment to entitle any present current or former director, officer, employee or other service provider independent contractor of any money Group Company to any compensation or other consideration; benefit or (ii) accelerateaccelerate the time of payment or vesting, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase or trigger any material obligation under payment or funding, of any Benefit Plan; (iv) result in any breach compensation or violation ofbenefits, or default or funding obligation undertrigger any other obligation. There is no agreement, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee plan or other service provider arrangement to Seller.
(f) No deduction which Seller or any of any amount payable pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that its Subsidiaries is a “nonqualified deferred compensation plan” within the meaning party or by which any of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated them is otherwise bound to compensate any Person in compliance with Section 409A respect of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred by such individual Taxes pursuant to Section 409A or 4999 of the CodeCode or pursuant to any other applicable Law.
(v) With respect to each MHPS Employee Plan: (i) all employer and employee contributions to each MHPS Employee Plan required by Law or by the terms of such MHPS Employee Plan to have been made prior to the date hereof have been made, or, if applicable, accrued, in accordance with normal accounting practices and (ii) each MHPS Employee Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement
Employee Benefit Plans and Related Matters. (a) Schedule 4.23 sets forth a true25. There are no Company Benefit Plans as of the date hereof, complete and correct list neither the Company nor the Company Subsidiary will, following the Closing, have any Liability in respect of all Benefit Plans. Seller has made available to Buyer, with respect to each any Company Benefit Plan, true, correct and complete copies of the following documents, as applicable: (i) the Seller Benefit Plan documents and all amendments (or, in the case of or any unwritten Benefit Plan, written descriptions, including the material terms, thereof), (ii) any related trust agreements, insurance contracts or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments), (v) the most recent summary plan description and summary of material modifications concerning the extent of the benefits provided under each Benefit Plan, (vi) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, letters, or other correspondence from the Internal Revenue Service, Department of Labor, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to any Employee Benefit Plan that have been adopted or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with applicable Law, including ERISA, the Code and the terms of any collective bargaining agreements or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (by Seller or been required any of its Affiliates. With respect to sponsoreach material Seller Benefit Plan, maintain the Seller has delivered or contribute to)made available to the Buyer true and correct copies of, or has any actual or contingent Liability underas applicable, any employee benefit plan that is (i) the plan document or a summary thereof and (ii) the most recent favorable determination, advisory or opinion letter from the Internal Revenue Service (the “IRS”).
26. There are no material claims or disputes pending or, to the Knowledge of Seller, threatened with respect to any Seller Benefit Plans which relate to a Company Employee (or his or her dependents or beneficiaries), other than claims for benefits in the ordinary course of business.
27. None of the Company or the Company Subsidiary has (or within the last six (6) years has had) any Liability (including any Liability on account of an ERISA Affiliate that is or could reasonably be expected to become a current Liability or obligation) (i) under Title IV of ERISA, Section 302 of ERISA or Sections 412 or 430 of the Code, including in connection with a “defined benefit multiemployer plan” (as defined in Section 3(353(37) of ERISA), (ii) otherwise with respect to a defined benefit pension plan or that provides for violation of the payment continuation of termination indemnities, or coverage requirements under COBRA and (iii) subject no event or condition exists that could reasonably be expected to Section 412 of result in any such Liability to either Company or the Code, Section 302 of ERISA and/or Title IV of ERISACompany Subsidiary. No Company Employee is eligible to participate in a Seller Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, that is a “multiemployer plan plan” (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA).
(c) 28. Each Seller Benefit Plan that is intended to be qualified under Section 401(a) of the Code has is subject to a current favorable determination determination, opinion or advisory letter (a true, correct and complete copy of which was made available to Buyer) as to its qualification or may rely on by the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Benefit Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) of the Code or any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Benefit Plan that has subjected, or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEO.
(d) With respect to any Benefit Plan, (i) no Proceeding (other than routine claims for benefits in the ordinary course) is pending orand, to the Knowledge of Seller, threatened; no event has occurred and no condition exists that would reasonably be expected adversely to affect the qualification of any such Seller Benefit Plan.
29. Each Seller Benefit Plan (iibut only with respect to Company Employees) that is a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been administered, operated and maintained in all material respects according to the Knowledge requirements of Seller, no facts or circumstances exist that could give rise to any such Proceeding; and (iii) no administrative investigation, audit or other administrative proceeding by any Governmental Authority is pending, in progress or, to Section 409A of the Knowledge of Seller, threatenedCode.
(e) 30. None of the execution and execution, delivery or performance of this Agreement or any of the other agreements contemplated hereby, or nor the consummation of any transaction the transactions contemplated herein or therein by this Agreement (alone or in combination with any other event), could ) will or can reasonably be expected to result in (i) result an increase in the amount of compensation or benefits, (ii) the acceleration of the vesting, funding or timing of payment of any compensation or benefits or (iii) the forfeiture of any material benefits under any Seller Benefit Plan, in any case, payable to or in respect of any present Company Employee, or current or former directoremployee, officer, employee director or other service provider independent contractor of any money either the Company or other consideration; the Company Subsidiary. Without limiting the generality of the foregoing, no amount paid or payable (iiwhether in cash, in property, or in the form of benefits) accelerate, trigger, enhance or provide any other rights or benefits to any present Company Employee, or current or former directoremployee, officer, employee director or independent contractor of either the Company or the Company Subsidiary, by the Company, the Company Subsidiary, the Seller or any of their respective Affiliates will arise or be made as a result (alone or in combination with any other service provider; (iiievent) accelerateof the execution, increase or trigger any material obligation under any Benefit Plan; (iv) result in any breach or violation ofdelivery and performance of this Agreement, or default or funding obligation underthe consummation of the transactions contemplated by this Agreement, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee or other service provider to Seller.
(f) No deduction of any amount payable that would not be deductible pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code or would result in a Tax under Section 4999 of the Code. Each Benefit Plan that is a “nonqualified deferred compensation plan” within Neither the meaning of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): Company nor the Company Subsidiary has been operated in compliance with Section 409A of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross make a “gross-up, indemnify ” or otherwise reimburse similar payment in respect of any individual for any additional tax Taxes that may become payable under Section 4999 or interest incurred by such individual pursuant to Section 409A of the Code.
Appears in 1 contract
Samples: Master Transaction Agreement (Equitable Holdings, Inc.)
Employee Benefit Plans and Related Matters. (aExcept as set forth on Section 3(x) Schedule 4.23 sets forth a true, complete and correct list of all Benefit Plans. Seller has made available to Buyer, with respect to each Benefit Plan, true, correct and complete copies of the following documentsDisclosure Schedule, as applicable: (i) neither the Benefit Plan documents and all amendments (or, in the case of Company nor any unwritten Benefit Plan, written descriptions, including the material terms, thereof), (ii) any related trust agreements, insurance contracts or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered Subsidiary is a party to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments)pension, (v) the most recent summary plan description and summary of material modifications concerning the extent of the benefits provided under each Benefit Planprofit sharing, (vi) the two most recent actuarial valuations (if applicable)savings, (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, lettersretirement, or other correspondence from the Internal Revenue Service, Department of Labordeferred compensation plan, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided bonus (whether payable in the foregoing documents made available to Buyer, there are no amendments to any Benefit Plan that have been adopted cash or approved, nor has Seller undertaken to make any such amendments stock) or to adopt or approve any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with applicable Law, including ERISA, the Code and the terms of any collective bargaining agreements or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing underincentive program, or is a participant in any group health plan (whether insured or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute tofunded), or has any actual disability or contingent Liability undergroup life insurance plan or other employee welfare benefit plan whether oral or written, including any “employee benefit plan that is (i) a “defined benefit planplans” (as defined in Section 3(353(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)) of which the Company, (ii) otherwise any Subsidiary or any Person was or is required, to be treated as a defined benefit pension plan or that provides for the payment of termination indemnities, or (iii) subject to single employer under Section 412 of the Code, Section 302 414 of ERISA and/or Title IV of ERISA(“ERISA Affiliate”). No Benefit Plan is, and neither Seller Neither the Company nor any ERISA Affiliate Subsidiary is a party to, nor has sponsored, maintained or contributed it made any contribution to or been required to sponsor, maintain or contribute to, or has otherwise incurred any actual or contingent Liability obligation under, a any “multiemployer plan (plan” as defined in Section 3(37) of ERISA. If any such plans exist, the Company has furnished or have caused to be furnished to the Purchaser or its counsel complete and accurate copies of such plans. Each of the Company and Subsidiaries has prepared in good faith and timely filed all requisite governmental reports and has properly and timely posted or distributed all notices and reports to the employees of the Company and/or Subsidiaries (as applicable) required to be filed, posted, or distributed with respect to each of such plans, if any. Each such plan, if any, has at all times been operated and administered in all material respects in accordance with its terms and all applicable Laws currently in effect, including ERISA and the Code and all amendments thereto. Neither the Company nor any Subsidiary has violated any of the health care continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985 applicable to employees of the Company prior to the Closing. None of the Company, Subsidiaries or any trustee or administrator of any employee welfare plan within the meaning of Section 4001(a)(33(1) of ERISA (“ERISA Plans”) covering any employee nor any party in interest (as defined in Section 3(14) of ERISA) or a multiple employer welfare arrangement disqualified person (as defined in Section 3(40) of ERISA).
(c) Each Benefit Plan intended to be qualified under Section 401(a4975(e)(2) of the Code has a current favorable determination letter (a true, correct and complete copy of which was made available to BuyerCode) as to its qualification or may rely on the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit ERISA Plan has engaged in any transaction which would subject the Company, any Subsidiary or such plan, or any trustee or administrator thereof, or any party dealing with any ERISA Plan or required by applicable Law any such trust to either a civil penalty assessed pursuant to ERISA or any Contract have been timely made or paid in full or, a tax imposed pursuant to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Financial StatementsCode. Seller has not incurred, nor could be reasonably expected to incur, any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Benefit Plan provides benefits, and there There are no understandings, written or oral, pending claims with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) administration or the investment of the Code or any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Benefit Plan that has subjected, or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act assets of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would such plan or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to otherwise involving any of its agreements with PEO.
(d) With respect to any Benefit Plan, (i) no Proceeding such plan (other than routine claims for benefits in the ordinary course) is pending or, to the Knowledge benefits). There are no “reportable events” under Section 4043 of Seller, threatened; (ii) to the Knowledge of Seller, no facts or circumstances exist that could give rise ERISA with respect to any such Proceeding; and (iii) no administrative investigation, audit or other administrative proceeding by any Governmental Authority is pending, in progress or, to the Knowledge of Seller, threatened.
(e) None of the execution and delivery of this Agreement or any of the other agreements contemplated hereby, or the consummation of any transaction contemplated herein or therein (alone or in combination with any other event), could (i) result in the payment to any present or former director, officer, employee or other service provider of any money or other consideration; (ii) accelerate, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase or trigger any material obligation under any Benefit Plan; (iv) result in any breach or violation of, or default or funding obligation under, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee or other service provider to Seller.
(f) No deduction of any amount payable pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that is a “nonqualified deferred compensation plan” pension benefit plan within the meaning of Treasury Regulation 1.409A-1(a)(1Section 3(2) (a “Nonqualified Deferred Compensation Plan”): has been operated in compliance with Section 409A of ERISA, subject to Title IV of ERISA, and none of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A Company, Subsidiaries or any ERISA Affiliate or shareholder of any of the Code for foregoing has incurred any liability under Title IV of ERISA in connection with the entire period during which termination of any pension benefit plan or the complete or partial withdrawal from any multiemployer plan within the meaning of Section 409A 3(37) of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred by such individual pursuant to Section 409A of the CodeERISA.
Appears in 1 contract
Employee Benefit Plans and Related Matters. (a) Schedule 4.23 sets forth a true, complete and correct list 4.12(a) of the CDL lists all material Company Benefit Plans. Seller With respect to each Company Benefit Plan, the Company has made available to Buyer, with respect to each Benefit Plan, SPAC true, correct and complete copies of the following documentsof, as applicable: (i) the such Company Benefit Plan documents and all amendments document (or, in the case if not written, a written summary of any unwritten Benefit Plan, written descriptions, including the its material terms, thereof), ; (ii) the summary plan description and all summaries of material modifications (in each case, whether or not required to be furnished under applicable Law); (iii) any related trust agreements, insurance contracts or and other funding instruments, vehicles; (iiiiv) the most recent IRS determination letter (actuarial report, if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules any; and attachments), (v) the most recent summary plan description and summary of material modifications concerning the extent of the benefits provided under each Benefit Planfinancial report, (vi) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, letters, or other correspondence from the Internal Revenue Service, Department of Labor, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to any Benefit Plan that have been adopted or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with applicable Law, including ERISA, the Code and the terms of any collective bargaining agreements or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program)any.
(b) No Company Benefit Plan isis subject to Laws of the United States. All Company Benefit Plans are and have been established, registered (where required) and neither Seller nor any ERISA Affiliate has sponsoredadministered, maintained or contributed to (or been required to sponsorin each case, maintain or contribute to), or has any actual or contingent Liability under, any employee benefit plan that is in all material respects: (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), accordance with all applicable Laws; and (ii) otherwise a defined benefit pension plan in accordance with their terms. To the Company’s Knowledge, no fact or that provides for circumstance exists which could adversely affect the payment of termination indemnities, tax-preferred or tax-exempt status (iii) subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor if there is any ERISA Affiliate has sponsored, maintained such tax-preferred or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3tax-exempt status) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA)any Company Benefit Plan.
(c) Each With respect to each Company Benefit Plan, all material contributions or payments (including all employer contributions, employee contributions or premium payments) required to be made by the terms of each such Company Benefit Plan intended and applicable Law have been made in accordance with applicable Law, and all such material contributions or payments that are not yet due have been made, paid or properly accrued in the Financial Statements in accordance with PFRS applied on a consistent basis. With respect to each Company Benefit Plan that is required to be qualified under Section 401(a) of the Code has a current favorable determination letter (a true, correct and complete copy of which was made available funded pursuant to Buyer) as to its qualification or may rely on the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Company Benefit Plan and applicable Law, as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been the amount by which the fair market value of the assets of any Company Benefit Plan is less than the actuarial present value of all accrued benefits under such Company Benefit Plan (whether or not vested), if applicable, is fully reflected on in the Financial Statements. Seller has not incurredStatements based upon generally accepted local accounting and actuarial practices and procedures, nor could be reasonably expected to incur, any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions regardless of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Benefit Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as whether required by Section 4980B(f) of the Code or any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Benefit Plan that has subjected, or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEOPFRS.
(d) With respect Except as would not reasonably be expected to any Benefit Planresult, either directly or indirectly, in material liability to the Group Companies, (i) no Proceeding (other than routine claims for benefits in the ordinary course) is benefits, there are no pending or, to the Knowledge Company’s Knowledge, threatened claims by or on behalf of Sellerany participant or any Governmental Authority in any of the Company Benefit Plans, threatened; or otherwise involving any Company Benefit Plan or the assets of any Company Benefit Plan and (ii) to the Knowledge there have been no breaches of Seller, no facts or circumstances exist that could give rise fiduciary duty with respect to any such Proceeding; and (iii) no administrative investigation, Company Benefit Plan. None of the Company Benefit Plans is presently under audit or other administrative proceeding examination (nor has notice been received by the Company of a potential audit or examination) by any Governmental Authority is pending, in progress or, to the Knowledge of Seller, threatenedAuthority.
(e) None of Neither the execution and delivery of this Agreement or any of the other agreements contemplated hereby, or nor the consummation of any transaction contemplated herein or therein the Transactions will (either alone or in combination conjunction with any other event), could (i) result in in, cause the payment to any present or former directoraccelerated vesting of, officer, employee or other service provider of any money or other consideration; (ii) accelerate, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase or trigger any material obligation under any Benefit Plan; (iv) result in any breach or violation funding of, or default increase the amount or funding obligation under, or limit Seller’s right to amend, modify or terminatevalue of, any Benefit Plan; compensatory payment or (v) trigger the forgiveness benefit to any current or former employee, officer or director of any indebtedness owed by any present Group Company (other than payment of ordinary course compensation to current employees, officers or former directordirectors, officerin each case, employee or other service provider to Seller.
(f) No deduction of any amount payable pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated in compliance with Section 409A of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual services performed for any additional tax or interest incurred by such individual pursuant to Section 409A Group Company in the ordinary course of the Codebusiness).
Appears in 1 contract
Employee Benefit Plans and Related Matters. (a) Schedule 4.23 sets Except as set forth a true, complete and correct list of all Benefit Plans. Seller has made available to Buyer, with respect to each Benefit Plan, true, correct and complete copies in Section 3.17 of the following documentsSeller Disclosure Letter, as applicable: (i) neither the Benefit Plan documents and all amendments (or, in the case of Company nor any unwritten Benefit Plan, written descriptions, including the material terms, thereof), (ii) any related trust agreements, insurance contracts or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments), (v) the most recent summary plan description and summary of material modifications concerning the extent of the benefits provided under each Benefit Plan, (vi) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, letters, or other correspondence from the Internal Revenue Service, Department of Labor, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to any Benefit Plan that have been adopted or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with applicable Law, including ERISA, the Code and the terms of any collective bargaining agreements or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or Company Subsidiary is a participant in or considering being a participant inparty to, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute to)is bound by, or has any actual or contingent Liability underliability in respect of, any employee benefit plan that is Employee Plan other than pursuant to the terms thereof. With respect to each Employee Plan, the following documents have been made available to Buyer: (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), the Employee Plan documents; (ii) otherwise a defined benefit pension plan any funding agreement or that provides for the payment of termination indemnities, or amendments thereto; (iii) subject the most recent actuarial report; (iv) all regulatory returns, reports, statements or filings made or completed within the two years prior to Section 412 the date hereof; (v) the most recent summaries and booklets describing or giving particulars of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, plan; and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37vi) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA)all material correspondence with all regulatory authorities.
(cb) Except for matters which would not, individually, or in the aggregate, be reasonably likely to have a Material Adverse Effect and except as set out in Section 3.17(b) of the Seller Disclosure Letter:
(i) Except as accrued in accordance with the terms of the Employee Plans as of the date hereof, neither the Company nor any Company Subsidiary has incurred any material liability, and no event, transaction or condition has occurred or exists that could result in any material liability, on account of any Employee Plans, including, but not limited to, material liability for (x) additional contributions required to be made under the terms of any Employee Plan or its related trust, insurance Contract or other funding arrangement with respect to periods ending on or prior to the date hereof which are not reflected, reserved against or accrued in the Financial Statements; or (y) breaches by the Company or any Company Subsidiary, or, to the Knowledge of Seller, the trustees under the trusts created under the Employee Plans, or any other Persons under ERISA or any other applicable Law. Each of the Employee Plans has been operated and administered in material compliance with its terms, all applicable Laws and, if applicable, collective bargaining agreements.
(ii) Each Benefit Employee Plan which is intended to be qualified under “qualified” within the meaning of Section 401(a) of the Code Code, and the trust (if any) forming a part thereof, has received or requested a current favorable determination letter (a true, correct and complete copy of which was made available to Buyer) as to its qualification or may rely on is covered by an opinion letter from the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full orInternal Revenue Service and, to the extent not required to be made or paid on or before the date hereofKnowledge of Seller, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Benefit Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) of the Code or any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing event has occurred with respect to any Benefit Plan that has subjected, or and no condition exists which could reasonably be expected to subjectresult in the revocation of any such determination. All amendments and actions required to bring each such Employee Plan into conformity with the applicable provisions of ERISA, the Seller or Code, and any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H other applicable Laws as of the Code. None of Seller date hereof have been made or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEOtaken.
(diii) With respect to There are no pending or threatened claims by or on behalf of any Benefit Planparticipant in any of the Employee Plans, (i) no Proceeding (other than routine claims for benefits in the ordinary course) is pending or, to the Knowledge of Seller, threatened; (ii) to the Knowledge of Seller, no facts or circumstances exist that could give rise to any such Proceeding; and (iii) no administrative investigation, . The Employee Plans are not presently under audit or other administrative proceeding examination (nor has notice been received of a potential audit or examination) by any Governmental Authority is pending, in progress or, to the Knowledge Internal Revenue Service or the Department of Seller, threatenedLabor.
(eiv) Except as set out in Section 3.17(b)(iv) of the Seller Disclosure Letter, None of the execution and delivery Employee Plans provides benefits of any kind with respect to current or former employees, officers, or directors (or their beneficiaries) of the Company or any Company Subsidiary beyond their retirement or other termination of employment, other than (x) coverage for benefits mandated by Section 4980B of the Code, (y) death benefits or retirement benefits under an employee pension benefit plan (as defined by Section 3(2) of ERISA), or (z) benefits, the full cost of which is borne by such current or former employees, officers, directors or beneficiaries.
(v) No Employee Plan sponsored by the Company or any Company Subsidiary is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or a “multiple employer plan” as addressed in section 4063 or 4064 of ERISA. Except as set out on Section 3.17(b)(v) of the Seller Disclosure Letter, no Employee Plan sponsored by the Company or Company Subsidiary is subject to Title IV of ERISA.
(vi) The consummation of the transactions contemplated by this Agreement or any of the other agreements contemplated hereby, or the consummation of any transaction contemplated herein or therein (alone or in combination with any other event), could (i) will not result in the (x) any payment (including, without limitation, severance, unemployment compensation, golden parachute, bonus payments or otherwise) becoming due under any agreement or oral arrangement to any present current or former director, officer, employee or other service provider consultant of the Company or any money Company Subsidiary, (y) any increase in the amount of salary, wages or other consideration; (ii) accelerate, trigger, enhance or provide any other rights or benefits payable to any present or former director, officer, employee or other service provider; (iii) accelerate, increase consultant of the Company or trigger any material obligation under any Benefit Plan; (iv) result in any breach or violation ofCompany Subsidiary, or default (z) any acceleration of the vesting or funding obligation undertiming of payment of any benefits or compensation (including, or limit Seller’s right to amend, modify or terminatewithout limitation, any Benefit Plan; increased or (vaccelerated funding obligation) trigger the forgiveness of payable to any indebtedness owed by any present or former director, officer, employee or other service provider to Seller.
(f) No deduction of any amount payable pursuant to the terms consultant of the Benefit Plans has been disallowed Company or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated in compliance with Section 409A of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred by such individual pursuant to Section 409A of the CodeCompany Subsidiary.
Appears in 1 contract
Employee Benefit Plans and Related Matters. (a) Schedule 4.23 sets forth a trueEach Benefit Plan entered into, complete and correct list of all Benefit Plans. Seller has made available to Buyer, with respect to each Benefit Plan, true, correct and complete copies sponsored or maintained by Theta or one of the following documents, as applicable: Theta Subsidiaries (i) the excluding any Benefit Plan documents and all amendments (or, that has expired or been terminated or no longer in the case of any unwritten Benefit Plan, written descriptions, including the material terms, thereof), (iieffect) any related trust agreements, insurance contracts or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence that is required to be filed with the SEC under the Exchange Act has been filed with the SEC.
(b) each Benefit Plan entered into, sponsored or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments), (v) the most recent summary plan description and summary of material modifications concerning the extent maintained by Theta or one of the benefits provided under each Theta Subsidiaries (each, a “Theta Benefit Plan, (vi”) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, letters, or other correspondence from the Internal Revenue Service, Department of Labor, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to any Benefit Plan that have been adopted or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested operated and administered in all respects in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with all applicable Law, including ERISA, the Code Laws and the terms of any applicable collective bargaining agreements or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, agreement; and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute to), or has any actual or contingent Liability under, any employee benefit plan that is (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), (ii) otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, or (iii) subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA).
(c) Each Benefit Plan intended to be qualified under Section 401(a) of the Code has a current favorable determination letter (a true, correct and complete copy of which was made available to Buyer) as to its qualification or may rely on the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full there are no pending or, to the extent not required to be made knowledge of Theta, threatened actions, suits, audits, proceedings or paid claims by or on or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, behalf of any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Theta Benefit Plans, by any employee or beneficiary covered under any Theta Benefit Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) of the Code or otherwise involving any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Theta Benefit Plan that has subjected, or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEO.
(d) With respect to any Benefit Plan, (i) no Proceeding (other than routine claims for benefits benefits), in each case, except as, individually or in the ordinary course) aggregate, has not had or is pending ornot reasonably expected to have a Material Adverse Effect on Theta . No event has occurred and, to the Knowledge knowledge of SellerTheta, threatened; no condition exists that would subject Theta or any Theta Subsidiary to any Tax, Lien, fine, penalty or other liability imposed by applicable Law, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Theta.
(c) No Theta Benefit Plan provides health or welfare benefits (whether or not insured), with respect to current or former employees or directors of Theta or any Theta Subsidiary or other Persons beyond their retirement or other termination of service, other than
(i) coverage mandated solely by applicable Law, (ii) to benefits the Knowledge full costs of Sellerwhich are borne by the current or former employee or director or other Person, no facts or circumstances exist that could give rise to any such Proceeding; and (iii) no administrative investigation, audit as required under any Theta Benefit Plan that provides long-term disability benefits that have been fully provided for by insurance thereunder or other administrative proceeding by any Governmental Authority is pending, (iv) except as has not resulted in progress or, and would not reasonably be expected to the Knowledge of Seller, threatenedresult in a Material Adverse Effect on Theta.
(ed) None The Theta Reports describe all material arrangements that, as a result of the negotiation or the execution and delivery of this Agreement or any of the other agreements contemplated hereby, or the consummation of any transaction the transactions contemplated herein or therein by this Agreement (alone or in combination conjunction with any other event, including any termination of employment on or following the Effective Time), could will (i) result in the payment to entitle any present current or former director, officer, employee or other service provider independent contractor of Theta or any money Theta Subsidiary to any compensation or other consideration; benefit or (ii) accelerateaccelerate the time of payment or vesting, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase or trigger any material obligation payment or funding, of any compensation or benefits, or trigger any other obligation, under any Theta Benefit Plan; (iv) , in each case, except as has not resulted in or would not reasonably be expected to result in any breach or violation ofa Material Adverse Effect on Theta. There is no agreement, or default or funding obligation under, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee plan or other service provider arrangement to Seller.
(f) No deduction of which Theta or any amount payable pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that Theta Subsidiary is a “nonqualified deferred compensation plan” within the meaning party or by which any of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated them is otherwise bound to compensate any Person in compliance with Section 409A respect of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred by such individual Taxes pursuant to Section 409A or 4999 of the CodeCode or pursuant to any other applicable Law.
(e) With respect to each Theta Benefit Plan, except as has not resulted in or would not reasonably be expected to result in a Material Adverse Effect on Theta: (i) all employer and employee contributions to each Theta Benefit Plan required by Law or by the terms of such Theta Benefit Plan to have been made prior to the date hereof have been made, or, if applicable, accrued, in accordance with normal accounting practices and (ii) each Theta Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
Appears in 1 contract
Samples: Business Combination Agreement
Employee Benefit Plans and Related Matters. (a) Schedule 4.23 sets forth a true, complete and correct list of all Benefit Plans. Seller has made available to Buyer, with respect to each Benefit Plan, true, correct and complete copies Section 5.14(a) of the following documents, as applicable: (i) Kappa Disclosure Letter lists all of the Benefit Plan documents and all amendments (or, in the case Plans of any unwritten Benefit Plan, written descriptions, including the material terms, thereof), (ii) any related trust agreements, insurance contracts or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence Kappa that would have been required to be filed by Kappa with the SEC if Kappa had been subject to the reporting obligations under Section 13 or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments), (vSection 15(d) the most recent summary plan description and summary of material modifications concerning the extent of the benefits provided under each Benefit PlanExchange Act, (vi) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, letters, or other correspondence from the Internal Revenue Service, Department of Labor, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to excluding any Benefit Plan that have has expired or been adopted terminated or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. no longer in effect.
(i) Each Benefit Plan entered into, sponsored or maintained by Kappa or any of the Kappa Subsidiaries (each, a "Kappa Benefit Plan") has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested operated and administered in all respects in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with all applicable Law, including ERISA, the Code Laws and the terms of any applicable collective bargaining agreements or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, agreement; and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute to), or has any actual or contingent Liability under, any employee benefit plan that is (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), (ii) otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, or (iii) subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA).
(c) Each Benefit Plan intended to be qualified under Section 401(a) of the Code has a current favorable determination letter (a true, correct and complete copy of which was made available to Buyer) as to its qualification or may rely on the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full there are no pending or, to the extent not required to be made knowledge of Kappa, threatened actions, suits, audits, proceedings or paid claims by or on or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, behalf of any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Kappa Benefit Plans, by any employee or beneficiary covered under any Kappa Benefit Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) of the Code or otherwise involving any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Kappa Benefit Plan that has subjected, or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEO.
(d) With respect to any Benefit Plan, (i) no Proceeding (other than routine claims for benefits benefits), in each case, except as, individually or in the ordinary course) aggregate, has not had or is pending ornot reasonably expected to have a Material Adverse Effect on Kappa. No event has occurred and, to the Knowledge knowledge of SellerKappa, threatened; no condition exists that would subject Kappa or any Kappa Subsidiary to any Tax, Lien, fine, penalty or other liability imposed by applicable Law, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Kappa.
(c) No Kappa Benefit Plan provides health or welfare benefits (whether or not insured), with respect to current or former employees or directors of Kappa or any Kappa Subsidiary or other Persons beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) to benefits the Knowledge full costs of Sellerwhich are borne by the current or former employee or director or other Person, no facts or circumstances exist that could give rise to any such Proceeding; and (iii) no administrative investigation, audit as required under any Kappa Benefit Plan that provides long-term disability benefits that have been fully provided for by insurance thereunder or other administrative proceeding by any Governmental Authority is pending, (iv) except as has not resulted in progress or, and would not reasonably be expected to the Knowledge of Seller, threatenedresult in a Material Adverse Effect on Kappa.
(ed) None of Neither the negotiation or the execution and delivery of this Agreement or any of the other agreements contemplated herebyAgreement, or nor the consummation of any transaction the transactions contemplated herein or therein by this Agreement (alone or in combination conjunction with any other event), could including any termination of employment on or following the Effective Time) will (i) result in the payment to entitle any present current or former director, officer, employee or other service provider independent contractor of Kappa or any money Kappa Subsidiary to any compensation or other consideration; benefit or (ii) accelerateaccelerate the time of payment or vesting, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase or trigger any material obligation payment or funding, of any compensation or benefits, or trigger any other obligation, under any Kappa Benefit Plan; (iv) , in each case, except as has not resulted in or would not reasonably be expected to result in any breach or violation ofa Material Adverse Effect on Kappa. There is no agreement, or default or funding obligation under, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee plan or other service provider arrangement to Seller.
(f) No deduction of which Kappa or any amount payable pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that Kappa Subsidiary is a “nonqualified deferred compensation plan” within the meaning party or by which any of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated them is otherwise bound to compensate any Person in compliance with Section 409A respect of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred by such individual Taxes pursuant to Section 409A or 4999 of the CodeCode or pursuant to any other applicable Law.
(e) With respect to each Kappa Benefit Plan, except as has not resulted in or would not reasonably be expected to result in a Material Adverse Effect on Kappa: (i) all employer and employee contributions to each Kappa Benefit Plan required by Law or by the terms of such Kappa Benefit Plan to have been made prior to the date hereof have been made, or, if applicable, accrued, in accordance with normal accounting practices and (ii) each Kappa Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
Appears in 1 contract
Employee Benefit Plans and Related Matters. (a) Schedule 4.23 sets forth a true, complete and correct list of all Benefit Plans. Seller has made available to Buyer, with respect to each Benefit Plan, true, correct and complete copies Section 5.14(a) of the following documents, as applicable: (i) Kappa Disclosure Letter lists all of the Benefit Plan documents and all amendments (or, in the case Plans of any unwritten Benefit Plan, written descriptions, including the material terms, thereof), (ii) any related trust agreements, insurance contracts or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence Kappa that would have been required to be filed by Kappa with the SEC if Kappa had been subject to the reporting obligations under Section 13 or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments), (vSection 15(d) the most recent summary plan description and summary of material modifications concerning the extent of the benefits provided under each Benefit PlanExchange Act, (vi) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, letters, or other correspondence from the Internal Revenue Service, Department of Labor, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to excluding any Benefit Plan that have has expired or been adopted terminated or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. no longer in effect.
(i) Each Benefit Plan entered into, sponsored or maintained by Kappa or any of the Kappa Subsidiaries (each, a “Kappa Benefit Plan”) has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested operated and administered in all respects in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with all applicable Law, including ERISA, the Code Laws and the terms of any applicable collective bargaining agreements or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, agreement; and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute to), or has any actual or contingent Liability under, any employee benefit plan that is (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), (ii) otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, or (iii) subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA).
(c) Each Benefit Plan intended to be qualified under Section 401(a) of the Code has a current favorable determination letter (a true, correct and complete copy of which was made available to Buyer) as to its qualification or may rely on the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full there are no pending or, to the extent not required to be made knowledge of Kappa, threatened actions, suits, audits, proceedings or paid claims by or on or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, behalf of any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Kappa Benefit Plans, by any employee or beneficiary covered under any Kappa Benefit Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) of the Code or otherwise involving any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Kappa Benefit Plan that has subjected, or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEO.
(d) With respect to any Benefit Plan, (i) no Proceeding (other than routine claims for benefits benefits), in each case, except as, individually or in the ordinary course) aggregate, has not had or is pending ornot reasonably expected to have a Material Adverse Effect on Kappa. No event has occurred and, to the Knowledge knowledge of SellerKappa, threatened; no condition exists that would subject Kappa or any Kappa Subsidiary to any Tax, Lien, fine, penalty or other liability imposed by applicable Law, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Kappa.
(c) No Kappa Benefit Plan provides health or welfare benefits (whether or not insured), with respect to current or former employees or directors of Kappa or any Kappa Subsidiary or other Persons beyond their retirement or other termination of service, other than
(i) coverage mandated solely by applicable Law, (ii) to benefits the Knowledge full costs of Sellerwhich are borne by the current or former employee or director or other Person, no facts or circumstances exist that could give rise to any such Proceeding; and (iii) no administrative investigation, audit as required under any Kappa Benefit Plan that provides long-term disability benefits that have been fully provided for by insurance thereunder or other administrative proceeding by any Governmental Authority is pending, (iv) except as has not resulted in progress or, and would not reasonably be expected to the Knowledge of Seller, threatenedresult in a Material Adverse Effect on Kappa.
(ed) None of Neither the negotiation or the execution and delivery of this Agreement or any of the other agreements contemplated herebyAgreement, or nor the consummation of any transaction the transactions contemplated herein or therein by this Agreement (alone or in combination conjunction with any other event), could including any termination of employment on or following the Effective Time) will (i) result in the payment to entitle any present current or former director, officer, employee or other service provider independent contractor of Kappa or any money Kappa Subsidiary to any compensation or other consideration; benefit or (ii) accelerateaccelerate the time of payment or vesting, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase or trigger any material obligation payment or funding, of any compensation or benefits, or trigger any other obligation, under any Kappa Benefit Plan; (iv) , in each case, except as has not resulted in or would not reasonably be expected to result in any breach or violation ofa Material Adverse Effect on Kappa. There is no agreement, or default or funding obligation under, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee plan or other service provider arrangement to Seller.
(f) No deduction of which Kappa or any amount payable pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that Kappa Subsidiary is a “nonqualified deferred compensation plan” within the meaning party or by which any of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated them is otherwise bound to compensate any Person in compliance with Section 409A respect of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred by such individual Taxes pursuant to Section 409A or 4999 of the CodeCode or pursuant to any other applicable Law.
(e) With respect to each Kappa Benefit Plan, except as has not resulted in or would not reasonably be expected to result in a Material Adverse Effect on Kappa: (i) all employer and employee contributions to each Kappa Benefit Plan required by Law or by the terms of such Kappa Benefit Plan to have been made prior to the date hereof have been made, or, if applicable, accrued, in accordance with normal accounting practices and (ii) each Kappa Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
Appears in 1 contract
Samples: Business Combination Agreement
Employee Benefit Plans and Related Matters. (a) Section 4.20(a) of the Disclosure Schedule 4.23 sets forth a true, complete true and correct list of all each material Company Group Entities Benefit PlansPlan and separately identifies which Company Group Entity sponsors or maintains each such material Company Group Entities Benefit Plan. Seller has Each Company Group Entities Benefit Plan (other than the Company Management Incentive Scheme and any offer letter, employment agreement, consulting agreement or similar agreement that contains severance or termination protections or that otherwise cannot be unilaterally terminated pursuant to applicable Law) can be amended or terminated by the respective Company Group Entity at any time (whether before or after the Closing) without liability or expense to any Company Group Entity (other than for payment of accrued benefits), except to the extent prohibited under ERISA, the Code, or any other applicable Laws.
(b) With respect to each Company Group Entities Benefit Plan, the Company Group Entities have delivered or made available to Buyer, with respect to each Benefit Plan, true, Buyer correct and complete copies of (to the following documents, as extent applicable: ) (i) the Benefit Plan documents each plan document and all any trust agreement relating to such plan and any amendments thereto (or, in the case of any unwritten such Company Group Entities Benefit PlanPlan that is unwritten, a written descriptions, including the material terms, description thereof), (ii) any the most recent summary plan description, and all related trust agreementssummaries of material modifications, insurance contracts or other funding instrumentsfor each Company Group Entities Benefit Plan for which such summary plan description is required, (iii) the three (3) most recent IRS determination letter (if applicable)annual reports on Form 5500 and all attachments and schedules thereto filed with the IRS, (iv) the three most recent annual reportsdetermination or opinion letter, or such similar reportsif any, statementsissued by, information returns or material correspondence required to be filed with or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments)the IRS, (v) the most recent summary plan description all material written agreements and summary of material modifications concerning the extent of the benefits provided under contracts relating to each Company Group Entities Benefit Plan, including administrative service agreements and group insurance contracts; (vi) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reportsall material correspondence to or from, and (viii) copies of all material noticesany non-routine filings with, letters, or other correspondence from the Internal Revenue Service, Department of Labor, or other any Governmental Authority relating to any Company Group Entities Benefit Plan within the prior three (3) years; (vii) the form of all current COBRA forms and related notices; (viii) all policies pertaining to fiduciary liability insurance covering the fiduciaries for each Company Group Entities Benefit Plan. ; (ix) all nondiscrimination test reports and summaries, if any are required, for each Company Group Entities Benefit Plan for the three (3) most recent plan years; and (x) if a Company Group Entities Benefit Plan is funded, the most recent annual and periodic accounting of Company Group Entities Benefit Plan assets.
(c) Except as specifically provided would not reasonably be expected to result in any material liability to the foregoing documents made available to BuyerCompany Group Entities, there are no amendments to any Benefit Plan that have been adopted or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. Each (i) each Company Group Entities Benefit Plan has been established, administeredqualified, funded andamended, to the extent applicableinvested, the assets of such Benefit Plan have been invested maintained, operated, funded, and administered in accordance with its terms. Seller, each Benefit Plan terms and PEO are, and have been, in compliance with all applicable LawLaws, including ERISA, ERISA and the Code and the terms of any collective bargaining agreements or (ii) all contributions, premium payments, and other labor union Contracts. All reports relating to each Benefit Plan payments required to be filed made with respect to any Governmental Authority Company Group Entities Benefit Plan on or before the date hereof have been timely filed, made and all reports and information relating to obligations in respect of each Company Group Entities Benefit Plan required to be disclosed or provided to participants or their beneficiaries as of the date hereof have been timely disclosed or providedaccrued and reflected in the Financial Statements to the extent required by IFRS. No (d) Each Company Group Entities Benefit Plan which is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute to), or has any actual or contingent Liability under, any employee benefit plan that is (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), (ii) otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, or (iii) subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA).
(c) Each Benefit Plan intended to be qualified within the meaning of Section 401(a) of the Code (i) has received a favorable determination letter as to its qualification, or may rely on an opinion letter for a pre-approved plan document from the IRS as to its qualified status, and is qualified in form and operation under Section 401(a) of the Code has a current favorable determination letter (a trueCode, correct and complete copy of which was made available to Buyer) as to its qualification or may rely on the IRS notification letter to the sponsor of any prototype plan used to document the terms of each trust for each such Company Group Entities Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Benefit Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) of the Code or any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations is exempt from federal income tax under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code501(a) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Benefit Plan that has subjected, or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEO.
(d) With respect to any Benefit Plan, (i) no Proceeding (other than routine claims for benefits in the ordinary course) is pending or, to the Knowledge of Seller, threatened; (ii) no event has occurred or circumstance exists that is likely to the Knowledge of Seller, no facts or circumstances exist that could give rise to disqualification or loss of tax-exempt status of any such Proceeding; and (iii) no administrative investigation, audit or other administrative proceeding by any Governmental Authority is pending, in progress or, to the Knowledge of Seller, threatened.
(e) None of the execution and delivery of this Agreement or any of the other agreements contemplated hereby, or the consummation of any transaction contemplated herein or therein (alone or in combination with any other event), could (i) result in the payment to any present or former director, officer, employee or other service provider of any money or other consideration; (ii) accelerate, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase or trigger any material obligation under any Benefit Plan; (iv) result in any breach or violation of, or default or funding obligation under, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee or other service provider to Seller.
(f) No deduction of any amount payable pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Company Group Entities Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated in compliance with Section 409A of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred by such individual pursuant to Section 409A of the Codeits related trust.
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Employee Benefit Plans and Related Matters. (ai) Schedule 4.23 3.1(k)(vi) sets forth a truetrue and complete list of each "employee benefit plan," as such term is defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not subject to ERISA, and each bonus, incentive or deferred compensation, severance, termination, retention, change of control, stock option, stock appreciation, stock purchase, phantom stock or other equity-based plan, program, agreement, or policy that provides or may provide benefits or compensation in respect of any employee or former employee of the Companies or the beneficiaries or dependents of any such employee or former employee (such employees, former employees, beneficiaries and dependents, collectively, the "Employees") or under which any Employee is or may become eligible to participate or derive a benefit and that is or has been maintained or established by the Companies or any other trade or business, whether or not incorporated, which, together with the Companies is or would have been at any date of determination occurring within the preceding six years treated as a single employer under Section 414 of the Code (such other trades and businesses, collectively, the "Related Persons"), or to which the Companies or any Related Person contributes or is or has been obligated or required to contribute or with respect to which the Companies may have any liability or obligation (collectively, the "Plans"). With respect to each such Plan, the Stockholders have provided the Purchaser with complete and correct list of copies of: all Benefit Plans. Seller has made available to Buyer, with respect to each Benefit Plan, true, correct and complete copies of the following documents, as applicable: (i) the Benefit Plan documents and ; all amendments (or, in the case of any unwritten Benefit Plan, written descriptions, including the material terms, thereof), (ii) any related trust agreements, insurance contracts or other funding instruments, (iii) arrangements; the two most recent actuarial and trust reports; a statement demonstrating satisfaction of all non-discrimination requirements of ERISA for the last two years; the two most recent Forms 5500 and all schedules thereto; the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments), (v) the most recent letter; current summary plan description and summary of material modifications concerning the extent of the benefits provided under each Benefit Plan, (vi) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of descriptions; all material notices, letters, communications received from or other correspondence from sent to the Internal Revenue Service, the Pension Benefit Guaranty Corporation or the Department of Labor; an actuarial study of any post-employment life or medical benefits provided under any such Plan, if any; statements or other Governmental Authority relating communications regarding withdrawal or other multiemployer plan liabilities, if any; and all amendments and modifications to any Benefit Plansuch document. Except as specifically provided in None of the foregoing documents made available to Buyer, there are no amendments Companies has communicated to any Benefit Employee any intention or commitment to modify any Plan that have been adopted or approved, nor has Seller undertaken to make any such amendments or to adopt establish or approve implement any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, other employee or retiree benefit or compensation arrangement and none of the Companies have communicated any intention or commitment to the extent applicable, the assets of such Benefit Plan have been invested in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with applicable Law, including ERISA, the Code and the terms of permanently maintain any collective bargaining agreements employee or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, and all reports and information relating to each Benefit Plan required to be disclosed retiree benefit or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program)compensation arrangement.
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute to), or has any actual or contingent Liability under, any employee benefit plan that is (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), (ii) otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, or (iii) subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA).
(c) Each Benefit Plan intended to be qualified under Section 401(a) of the Code Code, and the trust (if any) forming a part thereof, has received a current favorable determination letter (a true, correct and complete copy of which was made available to Buyer) from the IRS as to its qualification or may rely on under the IRS notification letter Code and to the sponsor of any prototype plan used to document the terms of effect that each such Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributionstrust is exempt from taxation under Section 501(a) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Benefit Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) of the Code or any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Benefit Plan since the date of such determination letter that has subjected, could adversely affect such qualification or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H tax-exempt status.
(a) Each of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and Plans has been operated and administered in all respects in compliance with its obligations under its agreements all applicable laws, except for any failure so to comply that, individually or together with PEOall other such failures, has not and will not result in a material liability or obligation on the part of the Companies, and has not had or resulted in, and will not have or result in, a Material Adverse Effect. There are no circumstances exist that reasonably would material pending or, to the knowledge of the Stockholders, threatened claims against or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant relating to any of its agreements with PEO.
(d) With respect to any Benefit Plan, (i) no Proceeding by any Employee or otherwise involving any such Plan or the assets of any Plan (other than routine claims for benefits in the ordinary course) is pending or, by persons entitled to the Knowledge of Seller, threatened; (ii) to the Knowledge of Seller, no facts or circumstances exist that could give rise to any such Proceeding; and (iii) no administrative investigation, audit or other administrative proceeding by any Governmental Authority is pending, in progress or, to the Knowledge of Seller, threatenedbenefits).
(eb) None No Plan is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA or is a "multiple employer plan" within the execution and delivery meaning of this Agreement Section 4063 or any of the other agreements contemplated hereby, 4064 or the consummation of any transaction contemplated herein or therein (alone or in combination with any other event), could (i) result in the payment to any present or former director, officer, employee or other service provider of any money or other consideration; (ii) accelerate, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase or trigger any material obligation under any Benefit Plan; (iv) result in any breach or violation of, or default or funding obligation under, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee or other service provider to SellerERISA.
(fc) No deduction of All contributions required to have been made by the Companies and each Related Person to any amount payable Plan pursuant to the terms of the Benefit Plans has any such Plan or any applicable collective bargaining agreement or applicable law have been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that is a “nonqualified deferred compensation plan” made within the meaning of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation time prescribed by any such Plan”): has been operated in compliance with Section 409A of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify agreement or otherwise reimburse any individual for any additional tax or interest incurred by such individual pursuant to Section 409A of the Codeapplicable law.
Appears in 1 contract
Employee Benefit Plans and Related Matters. (a) Schedule 4.23 sets forth 3.14(a) lists each material pension, retirement, profit-sharing, deferred compensation, bonus, phantom stock, restricted stock plan, stock option plan, stock purchase plan, deferred compensation arrangement, other incentive plan, severance pay plan or policy, supplemental executive retirement plan or policy, or other employee benefit program, arrangement, agreement or understanding, or medical, vision, dental or other health plan, or life insurance or disability plan, or any other employee benefit plan, including any "employee benefit plan" as defined in Section 3(3) of ERISA, in which Seller contributes or is a true, complete party or is bound and correct list under which it may have liability and under which employees or former employees of all the Assets of the business being purchased by Buyer (or their beneficiaries) are eligible to participate or derive a benefit ("Employee Benefit Plans"). Seller has made available to Buyer, with respect to each Benefit Plan, Buyer true, correct and complete copies of the following all documents, summary plan descriptions, insurance contracts, third party administration contracts and all other documentation created to embody all Employee Benefit Plans, plus descriptions of any Employee Benefit Plans that have not been reduced to writing;
(b) No material liability has been or is expected to be incurred by Seller under or pursuant to the Code or Title I or IV of ERISA or the penalty, excise tax or joint and several liability provisions of the code or ERISA relating to Employee Benefit Plans which could have any adverse impact upon Buyer;
(c) Except as applicable: (idisclosed on Schedule 3.14(c) the no Employee Benefit Plan documents and all amendments (or, in is a "multiple employer plan" within the case meaning of any unwritten Benefit Plan, written descriptions, including Section 413(c) of the material terms, thereof), (ii) any related trust agreements, insurance contracts or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reportsCode, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Authority a defined benefit plan within the meaning of Section 3(35) of ERISA;
(including reports filed on Form 5500 with accompanying schedules and attachments), (vd) the most recent summary plan description and summary of material modifications concerning the extent Each of the benefits provided under each Employee Benefit Plan, (viPlans listed in Schedule 3.14(a) the two most recent actuarial valuations (if applicable), (vii) coverage is and nondiscrimination testing reports and other similar has at all times been in compliance reports, and (viii) copies of in all material notices, letters, or other correspondence from the Internal Revenue Service, Department respects with all applicable provisions of Labor, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to any Benefit Plan that have been adopted or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with applicable Law, including ERISA, the Code and the terms of any collective bargaining agreements or other labor union Contracts. All reports relating to applicable Law;
(e) Except as disclosed on Schedule 3.14(e), each Employee Benefit Plan required to be filed with any Governmental Authority have been timely filed, and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute to), or has any actual or contingent Liability under, any employee benefit plan that is (i) a “defined an "employee pension benefit plan” (" as defined in Section 3(353(2) of ERISA), ERISA (iieach a "Pension Plan") otherwise a defined benefit pension plan or that provides for which is intended to meet the payment requirements of termination indemnities, or (iiiSection 401(a) subject to Section 412 of the CodeCode now meet and since their inception have met, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA).
(c) Each Benefit Plan intended to be qualified the requirements for qualification under Section 401(a) of the Code and nothing has occurred which would adversely affect the qualified status of any such Pension Plan other than such occurrences as may be corrected without resulting in an Adverse effect. Except as disclosed on Schedule 3.14(e), the IRS has issued a current favorable determination letter (a true, correct and complete copy of which was made available to Buyer) as to its qualification or may rely on the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding the qualification under the Code of each Pension Plan and the IRS has not taken any action to revoke any such letter. Except as disclosed on Schedule 3.14(e), nothing has occurred since the date of the most recent IRS favorable determination letter which would reasonably be expected to cause the loss of such qualification or the imposition of any material liability or penalty under the Code;
(f) Each fiduciary and every plan official of each Employee Benefit Plan is bonded to the extent required by Section 412 of ERISA. Except as disclosed on Schedule 3.14(f), those sections of all annual reports heretofore filed with the IRS, the Department of Labor and the Pension Benefit Guaranty Corporation by or on behalf of every Employee Benefit Plan which were required to be certified were only certified without qualification by the accountants or actuaries of such Employee Benefit Plan;
(g) Except as specifically set forth in Schedule 3.14(g), the execution and performance of the transactions contemplated by Seller this Agreement will not (either alone or PEO upon the occurrence of any additional or subsequent event) constitute an event under any Employee Benefit Plan or individual agreement that will or may result in any payment (whether of severance pay or otherwise), acceleration, vesting or increase in material benefits with respect to any Benefit Plan employee, former employee, consultant, agent or required by applicable Law or any Contract have been timely made or paid in full or, to the extent not required to director of Seller. No payment will be made by Seller to any employee, former employee, director, consultant or paid on agent of Seller which will or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (characterized as an "excess parachute payment" within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Benefit Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f280G(b)(1) of the Code Code;
(h) Except as disclosed on Schedule 3.14(h), at no time has Seller or any similar state statute ERISA Affiliate contributed to, been required to contribute to, or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees incurred any withdrawal liability (within the meaning of Section 4980H 4201 of ERISA) with respect to any Employee Benefit Plan which is a multi-employer plan as defined in Section 3(37) of ERISA;
(i) Each Employee Benefit Plan that is a "group health plan" (within the meaning of Section 4980B of the Code) maintained by Seller or any ERISA Affiliate has been administered in material compliance with the coverage continuation requirements contained in the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended and otherwise in respect as provided under Section 4980B of the “Employer Shared Responsibility” provisions Code and any regulations promulgated or proposed under the Code;
(j) With respect to all Employee Benefit Plans which are funded, or are required by applicable Law to be funded, except as disclosed on Schedule 3.14(j), the present value of Section 4980H all accrued benefits (vested and non vested) of each such Employee Benefit Plan as of the CodeClosing Date, will not exceed the fair market value of the assets of each such Employee Benefit Plan as of the Closing Date;
(k) Seller and nothing ERISA Affiliate have made all contributions required to be made to each Employee Benefit Plan under the terms of the plan and applicable Law. No prohibited transaction (as defined in Section 4975 of the Code or Section 406 of ERISA) has occurred with respect to any Employee Benefit Plan that has subjectedlisted, which could subject any Employee Benefit Plan or any related trust, Seller, Buyer, any ERISA Affiliate, or could reasonably be expected to subject, the Seller any director or employee of any ERISA Affiliate or, with respect of them to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax material tax or penalty imposed under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEO.
(d) With respect to any Benefit Plan, (i) no Proceeding (other than routine claims for benefits in the ordinary course) is pending or, to the Knowledge of Seller, threatened; (ii) to the Knowledge of Seller, no facts or circumstances exist that could give rise to any such Proceeding; and (iii) no administrative investigation, audit or other administrative proceeding by any Governmental Authority is pending, in progress or, to the Knowledge of Seller, threatened.
(e) None of the execution and delivery of this Agreement or any of the other agreements contemplated hereby, or the consummation of any transaction contemplated herein or therein (alone or in combination with any other event), could (i) result in the payment to any present or former director, officer, employee or other service provider of any money or other consideration; (ii) accelerate, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase or trigger any material obligation under any Benefit Plan; (iv) result in any breach or violation of, or default or funding obligation under, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee or other service provider to Seller.
(f) No deduction of any amount payable pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated in compliance with Section 409A 4975 of the Code or Section 502(i) or 502(1) of ERISA, either directly or indirectly, and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A whether by way of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The indemnity or otherwise; and
(l) Except as disclosed on Schedule 3.14(l), Seller does not have maintain, sponsor or contribute to any obligation plan or program providing retiree medical or life insurance benefits, except to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred the extent required by such individual pursuant to Section 409A of the Codeapplicable Law.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (L 3 Communications Corp)
Employee Benefit Plans and Related Matters. (a) Schedule 4.23 sets forth a true, complete and correct list of all Benefit Plans. Seller has made available to Buyer, with respect to each Benefit Plan, true, correct and complete copies of the following documents, as applicable: (i) the Benefit Plan documents and all amendments (or, in the case of any unwritten Benefit Plan, written descriptions, including the material terms, thereof), (ii) any related trust agreements, insurance contracts or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments), (v) the most recent summary plan description and summary of material modifications concerning the extent of the benefits provided under each Benefit Plan, (vi) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, letters, or other correspondence from the Internal Revenue Service, Department of Labor, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to any Benefit Plan that have been adopted or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with applicable Law, including ERISA, the Code and the terms of any collective bargaining agreements or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute to), or has any actual or contingent Liability under, any employee benefit plan that is (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), (ii) otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, or (iii) subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA).
(c) Each Benefit Plan intended to be qualified under Section 401(a4.02(n)(i) of the Code has a current favorable determination letter (a true, correct Seller Disclosure Letter separately identifies each Seller Plan and complete copy of which was made available to Buyer) as to its qualification or may rely on the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Benefit Plan as to the tax-qualified status of such Benefit each MHPS Employee Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list true and complete copies of all qualified beneficiaries (within plan documents, summary plan descriptions, and any other documentation of each MHPS Employee Plan. Each MHPS Employee Plan has been operated and administered in all respects in accordance with its terms, all applicable Laws and the meaning terms of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Benefit Plan provides benefits, any applicable collective bargaining agreement; and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) of the Code or any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Benefit Plan that has subjected, or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEO.
(d) With respect to any Benefit Plan, (i) no Proceeding (other than routine claims for benefits in the ordinary course) is pending or, to the Knowledge of Seller, threatened; threatened actions, suits, audits, proceedings or claims by or on behalf of any of the MHPS Employee Plans, by any employee or beneficiary covered under any MHPS Employee Plan or otherwise involving any MHPS Employee Plan (ii) other than routine claims for benefits), in each case, except as, individually or in the aggregate, has not had or is not reasonably expected to have an MHPS Material Adverse Effect. No event has occurred and, to the Knowledge of Seller, no facts or circumstances exist condition exists that could give rise would subject any Group Company to any such Proceeding; and Tax, Lien, fine, penalty or other liability imposed by applicable Law, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Transferred Companies.
(ii) No MHPS Employee Plan provides health or welfare benefits (whether or not insured), with respect to current or former employees or directors of any Group Company or other Persons beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) benefits the full costs of which are borne by the current or former employee or director or other Person or (iii) no administrative investigation, audit or other administrative proceeding as required under any MHPS Employee Plan that provides long-term disability benefits that have been fully provided for by any Governmental Authority is pending, in progress or, to the Knowledge of Seller, threatenedinsurance thereunder.
(eiii) None No MHPS Employee Plan is an equity compensation plan or otherwise provides long-term incentives to any current or former employees or directors of any Group Company.
(iv) Section 4.02(n)(iv) of the Seller Disclosure Letter describe all material arrangements that, as a result of the negotiation or the execution and delivery of this Agreement or any of the other agreements contemplated hereby, or the consummation of any transaction contemplated herein or therein the Transactions (alone or in combination conjunction with any other event, including any termination of employment on or following Closing), could will (i) result in the payment to entitle any present current or former director, officer, employee or other service provider independent contractor of any money Group Company to any compensation or other consideration; benefit or (ii) accelerateaccelerate the time of payment or vesting, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase or trigger any material obligation under payment or funding, of any Benefit Plan; (iv) result in any breach compensation or violation ofbenefits, or default or funding obligation undertrigger any other obligation. There is no agreement, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee plan or other service provider arrangement to Seller.
(f) No deduction which Seller or any of any amount payable pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that its Subsidiaries is a “nonqualified deferred compensation plan” within the meaning party or by which any of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated them is otherwise bound to compensate any Person in compliance with Section 409A respect of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred by such individual Taxes pursuant to Section 409A or 4999 of the CodeCode or pursuant to any other applicable Law.
(v) With respect to each MHPS Employee Plan: (i) all employer and employee contributions to each MHPS Employee Plan required by Law or by the terms of such MHPS Employee Plan to have been made prior to the date hereof have been made, or, if applicable, accrued, in accordance with normal accounting practices and (ii) each MHPS Employee Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
Appears in 1 contract
Employee Benefit Plans and Related Matters. (a) Schedule 4.23 sets forth a trueEach Benefit Plan entered into, complete and correct list of all Benefit Plans. Seller has made available to Buyer, with respect to each Benefit Plan, true, correct and complete copies sponsored or maintained by Theta or one of the following documents, as applicable: Theta Subsidiaries (i) the excluding any Benefit Plan documents and all amendments (or, that has expired or been terminated or no longer in the case of any unwritten Benefit Plan, written descriptions, including the material terms, thereof), (iieffect) any related trust agreements, insurance contracts or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence that is required to be filed with the SEC under the Exchange Act has been filed with the SEC.
(b) each Benefit Plan entered into, sponsored or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments), (v) the most recent summary plan description and summary of material modifications concerning the extent maintained by Theta or one of the benefits provided under each Theta Subsidiaries (each, a "Theta Benefit Plan, (vi") the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, letters, or other correspondence from the Internal Revenue Service, Department of Labor, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to any Benefit Plan that have been adopted or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested operated and administered in all respects in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with all applicable Law, including ERISA, the Code Laws and the terms of any applicable collective bargaining agreements or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, agreement; and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute to), or has any actual or contingent Liability under, any employee benefit plan that is (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), (ii) otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, or (iii) subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA).
(c) Each Benefit Plan intended to be qualified under Section 401(a) of the Code has a current favorable determination letter (a true, correct and complete copy of which was made available to Buyer) as to its qualification or may rely on the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full there are no pending or, to the extent not required to be made knowledge of Theta, threatened actions, suits, audits, proceedings or paid claims by or on or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, behalf of any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Theta Benefit Plans, by any employee or beneficiary covered under any Theta Benefit Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) of the Code or otherwise involving any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Theta Benefit Plan that has subjected, or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEO.
(d) With respect to any Benefit Plan, (i) no Proceeding (other than routine claims for benefits benefits), in each case, except as, individually or in the ordinary course) aggregate, has not had or is pending ornot reasonably expected to have a Material Adverse Effect on Theta . No event has occurred and, to the Knowledge knowledge of SellerTheta, threatened; no condition exists that would subject Theta or any Theta Subsidiary to any Tax, Lien, fine, penalty or other liability imposed by applicable Law, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Theta.
(c) No Theta Benefit Plan provides health or welfare benefits (whether or not insured), with respect to current or former employees or directors of Theta or any Theta Subsidiary or other Persons beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law, (ii) to benefits the Knowledge full costs of Sellerwhich are borne by the current or former employee or director or other Person, no facts or circumstances exist that could give rise to any such Proceeding; and (iii) no administrative investigation, audit as required under any Theta Benefit Plan that provides long-term disability benefits that have been fully provided for by insurance thereunder or other administrative proceeding by any Governmental Authority is pending, (iv) except as has not resulted in progress or, and would not reasonably be expected to the Knowledge of Seller, threatenedresult in a Material Adverse Effect on Theta.
(ed) None The Theta Reports describe all material arrangements that, as a result of the negotiation or the execution and delivery of this Agreement or any of the other agreements contemplated hereby, or the consummation of any transaction the transactions contemplated herein or therein by this Agreement (alone or in combination conjunction with any other event, including any termination of employment on or following the Effective Time), could will (i) result in the payment to entitle any present current or former director, officer, employee or other service provider independent contractor of Theta or any money Theta Subsidiary to any compensation or other consideration; benefit or (ii) accelerateaccelerate the time of payment or vesting, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase or trigger any material obligation payment or funding, of any compensation or benefits, or trigger any other obligation, under any Theta Benefit Plan; (iv) , in each case, except as has not resulted in or would not reasonably be expected to result in any breach or violation ofa Material Adverse Effect on Theta. There is no agreement, or default or funding obligation under, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee plan or other service provider arrangement to Seller.
(f) No deduction of which Theta or any amount payable pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that Theta Subsidiary is a “nonqualified deferred compensation plan” within the meaning party or by which any of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated them is otherwise bound to compensate any Person in compliance with Section 409A respect of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred by such individual Taxes pursuant to Section 409A or 4999 of the CodeCode or pursuant to any other applicable Law.
(e) With respect to each Theta Benefit Plan, except as has not resulted in or would not reasonably be expected to result in a Material Adverse Effect on Theta: (i) all employer and employee contributions to each Theta Benefit Plan required by Law or by the terms of such Theta Benefit Plan to have been made prior to the date hereof have been made, or, if applicable, accrued, in accordance with normal accounting practices and (ii) each Theta Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
Appears in 1 contract
Employee Benefit Plans and Related Matters. ERISA. Except as set forth on Section 4.13 of the Disclosure Schedule: (a) With respect to each Benefit Plan, the Sellers have made available to the Buyers a true, complete and correct copy thereof, and, to the extent applicable: (i) any related trust agreement or other funding instrument; (ii) the most recent IRS determination or opinion letter; (iii) the summary plan description and summaries of material modifications made to such summary plan description; and (iv) the most recent year’s Form 5500 and attached schedules and audited financial statements. None of the AUC Entities has any formal plan or commitment, whether legally binding or not, to create any additional Benefit Plan or modify or change any existing Benefit Plan that would affect any employee or former employee of the AUC Entities employed (or formerly employed) in connection with the Business. Section 4.13(a) of the Disclosure Schedule 4.23 sets forth a true, complete and correct list of each Benefit Plan. (b) Each Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification and, to the Knowledge of the Sellers, no event has occurred that would reasonably be expected to result in disqualification of such Benefit Plan. Each of the Benefit Plans has been operated and administered in all Benefit Plansmaterial respects in accordance with its terms and all applicable Laws, including ERISA and the Code. Seller No Liability under Title IV of ERISA has made available been incurred by any of the AUC Entities or any ERISA Affiliate of any of the AUC Entities that has not been satisfied in full (other than with respect to Buyeramounts not yet due), and no condition exists that presents a risk to any of the AUC Entities or any ERISA Affiliate of any of the AUC Entities of incurring a Liability thereunder. All contributions or other amounts payable by any of the AUC Entities as of the date hereof with respect to each Benefit PlanPlan in respect of current or prior plan years have, truein all material respects, correct and complete copies been paid or accrued in accordance with GAAP. None of the following documentsAUC Entities has engaged in a transaction in connection with which any such Seller reasonably would be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code. There are no pending or, as applicable: (i) to the Knowledge of the Sellers, threatened claims by or on behalf of any of the Benefit Plan documents and all amendments (orPlans, in the case of by any unwritten Benefit Plan, written descriptions, including the material terms, thereof), (ii) any related trust agreements, insurance contracts employee or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments), (v) the most recent summary plan description and summary of material modifications concerning the extent of the benefits provided beneficiary covered under each Benefit Plan, (vi) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, letters, or other correspondence from the Internal Revenue Service, Department of Labor, or other Governmental Authority relating to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to any Benefit Plan that have been adopted or approved, nor has Seller undertaken to make otherwise involving any such amendments or to adopt or approve any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with applicable Law, including ERISA, the Code and the terms of any collective bargaining agreements or (other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or providedthan routine claims for benefits). No Benefit Plan is a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA or a multiple employer welfare arrangement as defined in Section 3(40) of ERISA and no Benefit Plan is subject to Title IV of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority ERISA. 17 (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(bc) No Benefit Plan isprovides benefits, and neither Seller nor any ERISA Affiliate has sponsored, maintained including death or contributed to medical benefits (whether or been required to sponsor, maintain or contribute tonot insured), with respect to current or has any actual former employees or contingent Liability underdirectors of the Sellers beyond their retirement or other termination of service, any employee benefit plan that is other than (i) a coverage mandated solely by applicable Law; (ii) death benefits or retirement benefits under any “defined benefit employee pension plan” (as defined in Section 3(353(2) of ERISA), (ii) otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, or (iii) subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA).
(c) Each Benefit Plan intended to be qualified under Section 401(a) of the Code has a current favorable determination letter (a true, correct and complete copy of which was made available to Buyer) as to its qualification or may rely on the IRS notification letter to the sponsor of any prototype plan used to document the terms of such Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this Agreement. No Benefit Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except as required by Section 4980B(f) of the Code or any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Code, and nothing has occurred with respect to any Benefit Plan that has subjected, or could reasonably be expected to subject, the Seller or any ERISA Affiliate or, with respect to any period on or after the Closing Date, Buyer or any of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEO.
(d) With respect to any Benefit Plan, (i) no Proceeding (other than routine claims for benefits in the ordinary course) is pending or, to the Knowledge of Seller, threatened; (ii) to the Knowledge of Seller, no facts or circumstances exist that could give rise to any such Proceeding; and (iii) no administrative investigation, audit or other administrative proceeding by any Governmental Authority is pending, in progress or, to the Knowledge of Seller, threatened.
(e) None of the execution and delivery of this Agreement or any of the other agreements contemplated hereby, or the consummation of any transaction contemplated herein or therein (alone or in combination with any other event), could (i) result in the payment to any present or former director, officer, employee or other service provider of any money or other consideration; (ii) accelerate, trigger, enhance or provide any other rights or benefits to any present or former director, officer, employee or other service provider; (iii) accelerate, increase deferred compensation benefits accrued as Liabilities on the books of any of the AUC Entities; or trigger any material obligation under any Benefit Plan; (iv) result in any breach or violation of, or default or funding obligation under, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger benefits the forgiveness full costs of any indebtedness owed which are borne by any present the current or former director, officer, employee or other service provider to Sellerdirector or his or her beneficiary.
(f) No deduction of any amount payable pursuant to the terms of the Benefit Plans has been disallowed or is subject to disallowance under applicable Law, including Section 280G of the Code. Each Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated in compliance with Section 409A of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred by such individual pursuant to Section 409A of the Code.
Appears in 1 contract
Samples: Asset Purchase Agreement
Employee Benefit Plans and Related Matters. (a) Schedule 4.23 sets forth 3.22(a) contains a true, complete and correct list of all "employee benefit plans" (as defined in Section 3(3) of ERISA), and all bonus, stock option, stock purchase, deferred compensation plans and arrangements and other employee fringe benefit plans and any individual employment, severance, consulting or similar arrangement, in any case, maintained or contributed to, or required to be contributed to, or entered into, by the Company or any Company Subsidiary for the benefit of any current or former employee of the Company or any Company Subsidiary (all of the foregoing, collectively, "Employee Benefit Plans"). Seller The Company has made available to Buyer, with respect to each Benefit Plan, Buyer true, correct and complete copies of the following all plan documents, as applicable: (i) the Benefit Plan documents summary plan descriptions, insurance contracts, third party administration contracts and all amendments (orother documentation created to embody all Employee Benefit Plans, in the case of most recent filings required to be made with any unwritten governmental authority with respect to any Employee Benefit Plan, written descriptions, including the material terms, thereof), (ii) any related trust agreements, insurance contracts or other funding instruments, (iii) the most recent IRS determination letter (if applicable), (iv) the three most recent annual reports, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Authority (including reports filed on Form 5500 with accompanying schedules and attachments), (v) the most recent summary plan description and summary of material modifications concerning the extent of the benefits provided under each Benefit Plan, (vi) the two most recent actuarial valuations (if applicable), (vii) coverage and nondiscrimination testing reports and other similar compliance reports, and (viii) copies of all material notices, letters, or other correspondence received from the Internal Revenue Service, Department of Labor, or other Governmental Authority relating Service with respect to any Benefit Plan. Except as specifically provided in the foregoing documents made available to Buyer, there are no amendments to any Benefit Plan that have been adopted or approved, nor has Seller undertaken to make any such amendments or to adopt or approve any new Benefit Plan. Each Benefit Plan has been established, administered, funded and, to the extent applicable, the assets of such Benefit Plan have been invested in accordance with its terms. Seller, each Benefit Plan and PEO are, and have been, in compliance with applicable Law, including ERISA, the Code and the terms of any collective bargaining agreements or other labor union Contracts. All reports relating to each Benefit Plan required to be filed with any Governmental Authority have been timely filed, and all reports and information relating to each Benefit Plan required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided. No Benefit Plan is the subject of an application or filing under, or is a participant in or considering being a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority (including the Employee Plans Compliance Resolution System, the Voluntary Fiduciary Correction Program, or the Delinquent Filers Voluntary Correction Program).
(b) No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to (or been required to sponsor, maintain or contribute to), or has any actual or contingent Liability under, any employee benefit plan that is (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), (ii) otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, or (iii) subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. No Benefit Plan is, and neither Seller nor any ERISA Affiliate has sponsored, maintained or contributed to or been required to sponsor, maintain or contribute to, or has any actual or contingent Liability under, a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA).
(c) Each Benefit Plan intended to be qualified under Section 401(a) of the Code has a current favorable determination letter (a trueCode, correct and complete copy of which was made available to Buyer) as to its qualification or may rely on the IRS notification letter to the sponsor plus descriptions of any prototype plan used Employee Benefit Plans that have not been reduced to document the terms of such writing.
(b) All Employee Benefit Plan as to the tax-qualified status of such Benefit Plan. All contributions (including any employee salary reduction contributions) or other amount payable (including premiums payable with respect to insurance policies funding any Benefit Plan) by Seller or PEO with respect to any Benefit Plan or required by applicable Law or any Contract Plans have been timely made or paid administered in full orcompliance in all material respects with their terms and all Applicable Laws, to including ERISA and the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Financial Statements. Seller has not incurred, nor could be reasonably expected to incur, any unfunded Liabilities in relation to any Benefit Plan. Seller has complied with the continuation coverage provisions of COBRA and any applicable state statutes mandating health insurance continuation coverage for employees. Seller has made available to Buyer a list of all qualified beneficiaries (within the meaning of Code section 4980B(g)(1)) of Seller who are eligible for and/or have elected continuation coverage under COBRA as of the date of this AgreementCode. No Benefit Plan provides benefits, and there are no understandings, written or oral, material default exists with respect to the provision obligations of welfare benefitsthe Company or any Subsidiary under any Employee Benefit Plan.
(c) No material liability relating to any Employee Benefit Plan has been or is expected to be incurred by the Company or any Subsidiary under or pursuant to the Code or Title I of ERISA or the penalty, after termination excise tax or joint and several liability provisions of employmentthe Code or ERISA.
(d) Each Employee Benefit Plan that is an "employee pension benefit plan" as defined in Section 3(2) of ERISA (each, except as required by a "Pension Plan") that is intended to meet the requirements of Section 4980B(f401(a) of the Code or any similar state statute or foreign Law. Seller and PEO have complied with and acted consistently with their obligations under the Affordable Care Act and the rules and regulations promulgated thereunder, including, without limitation, with respect to providing timely notice to employees, offering affordable, minimum value medical insurance coverage to substantially all of its full-time employees (within the meaning of Section 4980H of the Code) and otherwise in respect of the “Employer Shared Responsibility” provisions of Section 4980H of the Codemeets such requirements, and nothing has occurred and no condition exists that is reasonably likely to adversely affect the qualified status of any such Pension Plan. The IRS has issued a favorable determination letter with respect to the qualification under the Code of each such Pension Plan and the IRS has not taken any Benefit Plan action to revoke any such letter. Moreover, nothing has occurred and no condition has existed since the date of the most recent IRS favorable determination letter that has subjected, or could would reasonably be expected to subject, cause the Seller loss of such qualification.
(e) At no time during the past six years has the Company or any ERISA Affiliate or, with respect contributed to or been required to contribute to any period on or after the Closing Date, Buyer pension plan subject to Title IV of ERISA or any multiemployer plan as defined in Section 3(37) of its affiliates, to a Tax or penalty under Section 4980H of the Code. None of Seller or PEO has attempted to maintain the grandfathered health plan status under the Affordable Care Act of any Benefit Plan. Seller is and has been in compliance with its obligations under its agreements with PEO, and no circumstances exist that reasonably would or could limit the ability of Buyer or Seller to benefit from the full rights and protections available to Seller pursuant to any of its agreements with PEOERISA.
(df) With respect to any Benefit PlanExcept as set forth in Schedule 3.22(f), (i) there are no Proceeding (other than routine claims for benefits in the ordinary course) is pending orinvestigations, to the Knowledge of Seller, threatened; (ii) to the Knowledge of Seller, no facts or circumstances exist that could give rise to any such Proceeding; and (iii) no administrative investigation, audit or other administrative proceeding by any Governmental Authority is pending, currently in progress or, to the Knowledge knowledge of Seller, threatenedexpected to be instituted in the future, relating to any Employee Benefit Plan, by any administrative agency, whether local, state or federal.
(eg) None Except as set forth on Schedule 3.22(g), no Employee Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the execution and delivery of this Agreement Company or any Company Subsidiary for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by applicable law, (ii) death benefits under any "pension plan," or (iii) benefits the other agreements contemplated herebyfull cost of which is borne by the current or former employee (or his beneficiary).
(h) Except as set forth on Schedule 3.22(h), or the consummation of any transaction the transactions contemplated herein or therein (by this Agreement will not, either alone or in combination with any other another event), could (i) result in the payment to entitle any present current or former director, officer, employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other service provider of any money payment, except as expressly provided in this Agreement, or other consideration; (ii) accelerateaccelerate the time of payment or vesting, trigger, enhance or provide increase the amount of compensation due any other rights or benefits to any present or former director, officer, such employee or other service provider; (iii) accelerate, increase or trigger any material obligation officer. No amounts payable under any Benefit Plan; (iv) result in any breach or violation of, or default or funding obligation under, or limit Seller’s right to amend, modify or terminate, any Benefit Plan; or (v) trigger the forgiveness of any indebtedness owed by any present or former director, officer, employee or other service provider to Seller.
(f) No deduction of any amount payable pursuant to the terms of the Employee Benefit Plans has been disallowed or is subject will fail to disallowance under applicable Law, including Section be deductible for federal income tax purposes by virtue of section 280G of the Code. Each Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Treasury Regulation 1.409A-1(a)(1) (a “Nonqualified Deferred Compensation Plan”): has been operated in compliance with Section 409A of the Code and the rules and regulations promulgated thereunder and has been in documentary compliance with Section 409A of the Code for the entire period during which Section 409A of the Code has applied to such Benefit Plan. The Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any additional tax or interest incurred by such individual pursuant to Section 409A of the Code.
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