Employee Benefit Plans; Employees. Except as to any noncompliance with any of the following provisions that would not, individually, or in the aggregate, have a Material Adverse Effect: (a) Schedule 5.18 sets forth a list of each "employee benefit plan" (as defined by Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and any other bonus, profit sharing, pension, compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, scholarship, disability, sick leave, vacation, bonus, retention, or other plan, agreement, or arrangement (each such plan, agreement or arrangement is referred to herein as an "Employee Benefit Plan", and collectively, the "Employee Benefit Plans") that is currently in effect for the benefit of (i) directors or employees of the Company, (ii) former directors or employees of the Company, or (iii) beneficiaries of anyone described in (i) or (ii) (collectively, "Company Employees") or with respect to which the Company or any "ERISA Affiliate" (hereby defined to include any trade or business, whether or not incorporated, other than the Company, which has employees who are treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) has any obligation on behalf of any Company Employee. Except as disclosed on Schedule 5.18 attached hereto, there are no other benefits to which any Company Employee is entitled for which the Company has any obligation. (b) Parent has delivered to Purchaser, with respect to each Employee Benefit Plan, true and complete copies of (i) the documents embodying the plan, including, without limitation, the current plan documents and documents creating any trust maintained pursuant thereto, all amendments, group annuity contracts, insurance contracts, the most recent summary plan description, if any, and employee handbooks, (ii) annual reports including but not limited to Forms 5500, 990 and 1041 for the last two (2) years for the plan and any related trust; (iii) any communication involving the plan or any related trust to or from the Internal Revenue Service ("IRS"), Department of Labor ("DOL"), Pension Benefit Guaranty Corporation ("PBGC") or any other governmental authority since January 1, 1998, but excluding any IRS determination letter submission; and (iv) the most recent determination letter received from the IRS pertaining to any Employee Benefit Plan intended to qualify under Sections 401(a) or 501(c)(9) of the Code. (c) The Company has no obligation to contribute to or provide benefits pursuant to, and has no other liability of any kind with respect to, (i) a "multiple employer welfare arrangement" (within the meaning of Section 3(40) of ERISA), or (ii) a "plan maintained by more than one employer" (within the meaning of Section 413(c) of the Code). (d) Except as otherwise set forth on Schedule 5.18 attached hereto, the Company is not liable for, and neither the Company nor Purchaser will be liable for, any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost assessment or other similar type of liability or expense of any ERISA Affiliate (including predecessors thereof) with regard to any Employee Benefit Plan maintained, sponsored or contributed to by an ERISA Affiliate (if a like definition of Employee Benefit Plan were applicable to the ERISA Affiliate in the same manner as it applies to the Company), including, without limitation, withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA, liabilities to the PBGC, or liabilities under Section 412 of the Code or Section 302(a) of ERISA. (e) The Company has complied in all respects with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA (such statutory provisions and predecessors thereof are referred to herein collectively as "COBRA"). (f) With respect to each Employee Benefit Plan and except as otherwise set forth on Schedule 5.18 attached hereto: (i) each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a determination letter from the IRS to the effect that the Employee Benefit Plan is qualified under Section 401 of the Code and that any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of the Code, and nothing has occurred or, to the knowledge of the Company and Parent, is expected to occur that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability; (ii) all payments required by the Employee Benefit Plan or by law (including all contributions, insurance premiums, premiums due the PBGC or intercompany charges) with respect to all periods through the date hereof have been made; (iii) there are no violations of or failures to comply with ERISA and the Code with respect to the filing of applicable reports, documents, and notices regarding the Employee Benefit Plan with DOL, the IRS, the PBGC or any other governmental authority, or any of the assets of the Employee Benefit Plan or any related trust; (iv) no claims, lawsuit, arbitration or other action has been asserted or instituted or, to the knowledge of the Company and Parent, threatened in writing against the Employee Benefit Plan, any trustee or fiduciaries thereof, the Company or any ERISA Affiliate, any director, officer or employee thereof, or any of the assets of the Employee Benefit Plan or any related trust, except for routine claims for benefits; (v) any bonding required with respect to the Employee Benefit Plan in accordance with the applicable provisions of ERISA has been obtained and is in full force and effect; (vi) the Employee Benefit Plan complies in all respects with and has been maintained and operated in all respects in accordance with its respective terms and the terms and the provisions of applicable law, including, without limitation, ERISA and the Code (including rules and regulations thereunder); (vii) no "prohibited transaction" (within the meaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to the Employee Benefit Plan (and the transactions contemplated by this Agreement will not constitute or directly or indirectly result in such a "prohibited transaction") which has subjected or, to the knowledge of Company and Parent, could reasonably be expected to subject the Company, any ERISA Affiliate or Purchaser, or any officer, director or employee of the Company, any ERISA Affiliate or Purchaser, or the Employee Benefit Plan trustee, administrator or other fiduciary, to a tax or penalty on prohibited transactions imposed by either Section 502 of ERISA or Section 4975 of the Code or any other liability with respect thereto, which tax, penalty or liability could have a Material Adverse Effect; (viii) to the knowledge of the Company and Parent, the Employee Benefit Plan is not under audit or investigation by the IRS or the DOL or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax, interest or penalty. (g) The Company is not subject to any liens, excise or other taxes under ERISA, the Code or other applicable law relating to any Employee Benefit Plan. (h) None of the Employee Benefit Plans is subject to Title IV of ERISA. (i) In the case of any Employee Benefit Plan that is a Multiemployer Plan, the Company has no withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA as a result of either a "complete withdrawal" (as defined in Section 4203 of ERISA) or a "partial withdrawal" (as defined in Section 4205 of ERISA) by the Company from such Employee Benefit Plan occurring on or prior to the date hereof. (j) The consummation of the Transactions will not give rise to any liability for any employee benefits, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Company Employee. (k) No amounts payable under any Employee Benefit Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as such Section of the Code is currently in effect. (l) Except as set forth on Schedule 5.18, attached hereto, no Employee Benefit Plan provides for any health benefits (other than under COBRA, the Federal Social Security Act or any Employee Benefit Plan qualified under Section 401(a) of the Code) to any Company Employee who, at the time the health benefit is to be provided, is a former director or former employee of the Company (or a beneficiary of any such person), nor, to the knowledge of the Company and Parent, have any representations, agreements, covenants or commitments been made to provide such health benefits. (m) Since June 30, 1999 and through the date hereof, except as set forth on Schedule 5.18 attached hereto or as required by applicable law or consistent with past practice, neither the Company nor any ERISA Affiliate has, nor will it, (i) institute or agree to institute any new employee benefit plan or practice for any Company Employee, (ii) make or agree to make any change in any Employee Benefit Plan, (iii) make or agree to make any increase in the compensation payable or to become payable by the Company or any ERISA Affiliate to any Company Employee, other than regularly scheduled increases, or (iv) except pursuant to this Agreement and except for contributions required to provide benefits pursuant to the provisions of the Employee Benefit Plans, pay or accrue or agree to pay or accrue any bonus, percentage of compensation, or other like benefit to, or for the credit of, any Company Employee. (n) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any Employee Benefit Plan which is attributable to any period or any portion of any period prior to the Closing shall, to the extent required by GAAP, be reflected as a liability on the Closing Balance Sheet, including, without limitation, any portion of the matching contribution required with respect to the Parent Plan for the plan year ending after the Closing which is attributable to elective contributions made by Company Employees in such plan prior to the Closing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Investment Agreement (Simione Central Holdings Inc), Agreement and Plan of Merger and Investment Agreement (MCS Inc)
Employee Benefit Plans; Employees. Except as to any noncompliance with any of the following provisions that would not, individually, or in the aggregate, have a Material Adverse Effect:.
(a) Schedule 5.18 6.18 sets forth a list of each "employee benefit plan" (as defined by Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and any other bonus, profit sharing, pension, compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, scholarship, disability, sick leave, vacation, bonus, retention, or other plan, agreement, or arrangement (each such plan, agreement or arrangement is referred to herein as an "Employee Benefit Plan", and collectively, the "Employee Benefit Plans") Plan that is currently in effect for the benefit of (i) directors or employees of the CompanyPurchaser, (ii) former directors or employees of the CompanyPurchaser, or (iii) beneficiaries of anyone described in (i) or (ii) (collectively, "Company Purchaser Employees") or with respect to which the Company Purchaser or any "ERISA Affiliate" (hereby defined to include any trade or business, whether or not incorporated, other than the Company, which has employees who are treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) Affiliate has any obligation on behalf of any Company Purchaser Employee. Except as disclosed on Schedule 5.18 6.18 attached hereto, there are no other benefits to which any Company Purchaser Employee is entitled for which the Company Purchaser has any obligation.
(b) Parent Purchaser has delivered to PurchaserParent and the Company, with respect to each Employee Benefit Plan, true and complete copies of (i) the documents embodying the plan, including, without limitation, the current plan documents and documents creating any trust maintained pursuant thereto, all amendments, group annuity contracts, insurance contracts, the most recent summary plan description, if any, and employee handbooks, (ii) annual reports including but not limited to Forms 5500, 990 and 1041 for the last two (2) years for the plan and any related trust; (iii) any communication involving the plan or any related trust to or from the Internal Revenue Service ("IRS"), Department of Labor ("DOL"), Pension Benefit Guaranty Corporation ("PBGC") PBGC or any other governmental authority since January 1, 1998, but excluding any IRS determination letter submission; and (iv) the most recent determination letter received from the IRS pertaining to any Employee Benefit Plan intended to qualify under Sections 401(a) or 501(c)(9) of the Code.
(c) The Company Purchaser has no obligation to contribute to or provide benefits pursuant to, and has no other liability of any kind with respect to, (i) a "multiple employer welfare arrangement" (within the meaning of Section 3(40) of ERISA), or (ii) a "plan maintained by more than one employer" (within the meaning of Section 413(c) of the Code).
(d) Except as otherwise set forth on Schedule 5.18 6.18 attached hereto, the Company Purchaser is not liable for, and neither the Company nor Purchaser will be liable for, for any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost assessment or other similar type of liability or expense of any ERISA Affiliate (including predecessors thereof) with regard to any Employee Benefit Plan maintained, sponsored or contributed to by an ERISA Affiliate (if a like definition of Employee Benefit Plan were applicable to the ERISA Affiliate in the same manner as it applies to the CompanyPurchaser), including, without limitation, withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA, liabilities to the PBGC, or liabilities under Section 412 of the Code or Section 302(a) of ERISA.
(e) The Company Purchaser has complied in all respects with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA (such statutory provisions and predecessors thereof are referred to herein collectively as "COBRA").
(f) With respect to each Employee Benefit Plan and except as otherwise set forth on Schedule 5.18 6.18 attached hereto:
(i) each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a determination letter from the IRS to the effect that the Employee Benefit Plan is qualified under Section 401 of the Code and that any trust maintained -51- 57 pursuant thereto is exempt from federal income taxation under Section 501 of the Code, and nothing has occurred or, to the knowledge of the Company and ParentPurchaser, is expected to occur that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) all payments required by the Employee Benefit Plan or by law (including all contributions, insurance premiums, premiums due the PBGC or intercompany charges) with respect to all periods through the date hereof have been made;
(iii) there are no violations of or failures to comply with ERISA and the Code with respect to the filing of applicable reports, documents, and notices regarding the Employee Benefit Plan with DOL, the IRS, the PBGC or any other governmental authority, or any of the assets of the Employee Benefit Plan or any related trust;
(iv) no claims, lawsuit, arbitration or other action has been asserted or instituted or, to the knowledge of the Company and ParentPurchaser, threatened in writing against the Employee Benefit Plan, any trustee or fiduciaries thereof, the Company Purchaser or any ERISA Affiliate, any director, officer or employee thereof, or any of the assets of the Employee Benefit Plan or any related trust, except for routine claims for benefits;
(v) any bonding required with respect to the Employee Benefit Plan in accordance with the applicable provisions of ERISA has been obtained and is in full force and effect;
(vi) the Employee Benefit Plan complies in all respects with and has been maintained and operated in all respects in accordance with its respective terms and the terms and the provisions of applicable law, including, without limitation, ERISA and the Code (including rules and regulations thereunder);
(vii) no "prohibited transaction" (within the meaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to the Employee Benefit Plan (and the transactions contemplated by this Agreement will not constitute or directly or indirectly result in such a "prohibited transaction") which has subjected or, to the knowledge of Company and ParentPurchaser, could reasonably be expected to subject the CompanyPurchaser, any ERISA Affiliate or Purchaserthe Company, or any officer, director or employee of the CompanyPurchaser, any ERISA Affiliate Affiliate, or Purchaserthe Company, or the Employee Benefit Plan trustee, administrator or other fiduciary, to a tax or penalty on prohibited transactions imposed by either Section 502 of ERISA or Section 4975 of the Code or any other liability with respect thereto, which tax, penalty or liability could have a Material Adverse Effect;
(viii) to the knowledge of the Company and ParentPurchaser, the Employee Benefit Plan is not under audit or investigation by the IRS or the DOL or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax, interest or penalty.
(g) The Company Purchaser is not subject to any liens, excise or other taxes under ERISA, the Code or other applicable law relating to any Employee Benefit Plan.
(h) None of the Employee Benefit Plans is subject to Title IV of ERISA.
(i) In the case of any Employee Benefit Plan that is a Multiemployer Plan, the Company Purchaser has no withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA as a result of either a "complete withdrawal" (as defined in Section 4203 of ERISA) or a "partial withdrawal" (as defined in Section 4205 of ERISA) by the Company Purchaser from such Employee Benefit Plan occurring on or prior to the date hereof.
(j) The consummation of the Transactions will not give rise to any liability for any employee benefits, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Company Purchaser Employee.
(k) No amounts payable under any Employee Benefit Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code Code, as such Section of the Code is currently in effect.
(l) Except as set forth on Schedule 5.18, 6.18 attached hereto, no Employee Benefit Plan provides for any health benefits (other than under COBRA, the Federal Social Security Act or any Employee Benefit Plan qualified under Section 401(a) of the Code) to any Company Purchaser Employee who, at the time the health benefit is to be provided, is a former director or former employee of the Company Purchaser (or a beneficiary of any such person), nor, to the knowledge of the Company and ParentPurchaser, have any representations, agreements, covenants or commitments been made to provide such health benefits.
(m) Since June 30, 1999 and through the date hereof, except as set forth on Schedule 5.18 6.18 attached hereto or as required by applicable law or consistent with past practice, neither the Company Purchaser nor any ERISA Affiliate has, nor will it, (i) institute or agree to institute any new employee benefit plan or practice for any Company Purchaser Employee, (ii) make or agree to make any change in any Employee Benefit Plan, (iii) make or agree to make any increase in the compensation payable or to become payable by the Company Purchaser or any ERISA Affiliate to any Company Purchaser Employee, other than regularly scheduled increases, or (iv) except pursuant to this Agreement and except for contributions required to provide benefits pursuant to the provisions of the Employee Benefit Plans, pay or accrue or agree to pay or accrue any bonus, percentage of compensation, or other like benefit to, or for the credit of, any Company Purchaser Employee.
(n) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any Employee Benefit Plan which is attributable to any period or any portion of any period prior to the Closing shall, to the extent required by GAAP, be reflected as a liability on the Closing Balance SheetPurchaser Financial Statements, including, without limitation, any portion of the matching contribution required with respect to the Parent Purchaser Plan for the plan year ending after the Closing which is attributable to elective contributions made by Company Purchaser Employees in such plan prior to the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Investment Agreement (MCS Inc)
Employee Benefit Plans; Employees. Except as to any noncompliance with any of the following provisions that would not, individually, or in the aggregate, have a Material Adverse Effect:
(a) Schedule 5.18 SCHEDULE 5.19 sets forth a list of each material "employee benefit plan" (as defined by Section 3(33(e) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), ) and any other bonus, profit sharing, pension, material compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, scholarship, disability, sick leave, vacation, bonus, retention, or other planagreement, agreementpolicy, or arrangement (each such plan, agreement agreement, policy, or arrangement is referred to herein as an a "MIOA Employee Benefit Plan"," and, and collectively, the "MIOA Employee Benefit Plans") that is currently in effect for the benefit of employees (iand their beneficiaries) directors of MIOA or employees any of the Company, (ii) former directors or employees of the Company, or (iii) beneficiaries of anyone described in (i) or (ii) its Subsidiaries (collectively, "Company MIOA Employees") or with respect to which the Company MIOA or any "MIOA ERISA Affiliate" (hereby defined to include any trade or business, whether or not incorporated, other than the CompanyMIOA, which has employees who are treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) has any obligation on behalf of any Company Employee. Except as disclosed on Schedule 5.18 attached hereto, there are no other benefits to which any Company Employee is entitled for which the Company has any obligationMIOA).
(b) Parent has MIOA has, or will have prior to the Schedule Delivery Date, delivered to PurchaserCCI, with respect to each MIOA Employee Benefit Plan, true and complete copies of (i) the documents embodying the plan, including, without limitation, the current plan documents and documents creating any trust maintained pursuant thereto, all amendments, group annuity contracts, insurance contracts, the most recent summary plan descriptionPlan, if any, and employee handbooks, (ii) annual reports including but not limited to Forms 5500, 990 and 1041 for handbooks governing the last two (2) years for the plan and any related trust; (iii) any communication involving the plan or any related trust to or from the Internal Revenue Service ("IRS"), Department employment of Labor ("DOL"), Pension Benefit Guaranty Corporation ("PBGC") or any other governmental authority since January 1, 1998, but excluding any IRS determination letter submission; and (iv) the most recent determination letter received from the IRS pertaining to any Employee Benefit Plan intended to qualify under Sections 401(a) or 501(c)(9) of the CodeMIOA Employees.
(c) The Company Neither MIOA nor any Subsidiary has no any obligation to contribute to or provide benefits pursuant to, and has no other liability of any kind with respect to, (i) a "multiple employer welfare arrangement" (within the meaning of Section 3(40) of ERISA), or (ii) a "plan maintained by more than one employer" (within the meaning of Section 413(c) of the Code), (iii) a "multi-employer plan" within the meaning of Section 3(37) of ERISA), or (iv) an "employee pension benefit plan" (within the meaning of Section 3(2) of ERISA) which is subject to Title IV of ERISA.
(d) Except as otherwise set forth on Schedule 5.18 attached heretoTo the knowledge of MIOA, neither MIOA nor any Subsidiary is subject to any liens, or excise or other taxes under ERISA, the Company is not liable for, and neither the Company nor Purchaser will be liable for, any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost assessment Code or other similar type of liability or expense of any ERISA Affiliate (including predecessors thereof) with regard applicable law relating to any MIOA Employee Benefit Plan maintained, sponsored or contributed Plan.
(e) The consummation of the Transactions will not give rise to by an ERISA Affiliate (if a like definition of Employee Benefit Plan were applicable any liability for any employee benefits to the ERISA Affiliate in the same manner as it applies to the Company)any MIOA Employee, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA, liabilities to the PBGC, or liabilities under Section 412 of the Code or Section 302(a) of ERISAliability.
(ef) The Company has complied No MIOA Employee Benefit Plan in all respects with the applicable requirements any way provides for any benefits of any kind whatsoever (other than under Section 4980B of the Code and Section 601 et seq. Part 6 of ERISA (such statutory provisions and predecessors thereof are referred to herein collectively as "COBRA").
(f) With respect to each Subtitle B of Title I of ERISA, the Federal Social Security Act or any MIOA Employee Benefit Plan and except as otherwise set forth on Schedule 5.18 attached hereto:
(i) each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received Code) to any MIOA Employee who, at the time the benefit is to be provided, is a determination letter from the IRS former director or employee of, other provider of services to the effect that the MIOA or an MIOA ERISA Affiliate (or a beneficiary of any such person).
(g) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any MIOA Employee Benefit Plan which is qualified under Section 401 attributable to any period or any portion of any period prior to the Code and that any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of Closing will be paid by MIOA or a Subsidiary or will be reflected on the Code, and nothing has occurred orHistorical Financials.
(h) Except as disclosed on SCHEDULE 5.19(H), to the knowledge of the Company and ParentMIOA, is expected to occur that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) all payments required by the Employee Benefit Plan or by law (including all contributions, insurance premiums, premiums due the PBGC or intercompany charges) with respect to all periods through the date hereof have been made;
(iii) there are no violations of or failures to comply with ERISA and the Code with respect to the filing of applicable reports, documents, and notices regarding the Employee Benefit Plan with DOL, the IRS, the PBGC or any other governmental authority, or any of the assets of the Employee Benefit Plan or any related trust;
(iv) no claimsclaim, lawsuit, arbitration or other action has been asserted or instituted or, to the knowledge of the Company and Parent, or threatened in writing against the any MIOA Employee Benefit Plan, any trustee or fiduciaries thereof, the Company MIOA, any of its Subsidiaries or any MIOA ERISA Affiliate, any director, officer or employee thereof, or any of the assets of the an MIOA Employee Benefit Plan or any related trust, except for routine claims for benefits;.
(vi) any bonding required with respect to the Employee Benefit Plan in accordance with the applicable provisions of ERISA has been obtained and is in full force and effect;
(vi) the Employee Benefit Plan complies in all respects with and has been maintained and operated in all respects in accordance with its respective terms and the terms and the provisions of applicable law, including, without limitation, ERISA and the Code (including rules and regulations thereunderExcept as disclosed on SCHEDULE 5.19(I);
(vii) no "prohibited transaction" (within the meaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to the Employee Benefit Plan (and the transactions contemplated by this Agreement will not constitute or directly or indirectly result in such a "prohibited transaction") which has subjected or, to the knowledge of Company and ParentMIOA, could reasonably be expected to subject the Company, any ERISA Affiliate or Purchaser, or any officer, director or employee of the Company, any ERISA Affiliate or Purchaser, or the Employee Benefit Plan trustee, administrator or other fiduciary, to a tax or penalty on prohibited transactions imposed by either Section 502 of ERISA or Section 4975 of the Code or any other liability with respect thereto, which tax, penalty or liability could have a Material Adverse Effect;
(viii) to the knowledge of the Company and Parent, the no MIOA Employee Benefit Plan is not under audit or investigation by the IRS or the DOL or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax, interest or penalty.
(g) The Company is not subject to any liens, excise or other taxes under ERISA, the Code or other applicable law relating to any Employee Benefit Plan.
(h) None of the Employee Benefit Plans is subject to Title IV of ERISA.
(i) In the case of any Employee Benefit Plan that is a Multiemployer Plan, the Company has no withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA as a result of either a "complete withdrawal" (as defined in Section 4203 of ERISA) or a "partial withdrawal" (as defined in Section 4205 of ERISA) by the Company from such Employee Benefit Plan occurring on or prior to the date hereof.
(j) The consummation of the Transactions will not give rise to any liability for any employee benefits, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Company Employee.
(k) No amounts payable under any Employee Benefit Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as such Section of the Code is currently in effect.
(l) Except as set forth on Schedule 5.18, attached hereto, no Employee Benefit Plan provides for any health benefits (other than under COBRA, the Federal Social Security Act or any Employee Benefit Plan qualified under Section 401(a) of the Code) to any Company Employee who, at the time the health benefit is to be provided, is a former director or former employee of the Company (or a beneficiary of any such person), nor, to the knowledge of the Company and Parent, have any representations, agreements, covenants or commitments been made to provide such health benefits.
(m) Since June 30, 1999 and through the date hereof, except as set forth on Schedule 5.18 attached hereto or as required by applicable law or consistent with past practice, neither the Company nor any ERISA Affiliate has, nor will it, (i) institute or agree to institute any new employee benefit plan or practice for any Company Employee, (ii) make or agree to make any change in any Employee Benefit Plan, (iii) make or agree to make any increase in the compensation payable or to become payable by the Company or any ERISA Affiliate to any Company Employee, other than regularly scheduled increases, or (iv) except pursuant to this Agreement and except for contributions required to provide benefits pursuant to the provisions of the Employee Benefit Plans, pay or accrue or agree to pay or accrue any bonus, percentage of compensation, or other like benefit to, or for the credit of, any Company Employee.
(n) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any Employee Benefit Plan which is attributable to any period or any portion of any period prior to the Closing shall, to the extent required by GAAP, be reflected as a liability on the Closing Balance Sheet, including, without limitation, any portion of the matching contribution required with respect to the Parent Plan for the plan year ending after the Closing which is attributable to elective contributions made by Company Employees in such plan prior to the Closing.
Appears in 1 contract
Samples: Stock Exchange Agreement (Medical Industries of America Inc)
Employee Benefit Plans; Employees. Except as to any noncompliance with any of the following provisions that would not, individually, or in the aggregate, have a Material Adverse Effect:
(a) Schedule 5.18 SCHEDULE 6.19 sets forth a list of each material "employee benefit plan" (as defined by Section 3(33(e) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), ) and any other bonus, profit sharing, pension, material compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, scholarship, disability, sick leave, vacation, bonus, retention, or other planagreement, agreementpolicy, or arrangement (each such plan, agreement agreement, policy, or arrangement is referred to herein as an a "VPC Employee Benefit Plan"," and, and collectively, the "VPC Employee Benefit Plans") that is currently in effect for the benefit of employees (iand their beneficiaries) directors or employees of the Company, (ii) former directors or employees of the Company, or (iii) beneficiaries of anyone described in (i) or (ii) VPC (collectively, "Company VPC Employees") or with respect to which the Company VPC or any "VPC ERISA Affiliate" (hereby defined to include any trade or business, whether or not incorporated, other than the CompanyVPC, which has employees who are treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) has any obligation on behalf of any Company Employee. Except as disclosed on Schedule 5.18 attached hereto, there are no other benefits to which any Company Employee is entitled for which the Company has any obligationVPC).
(b) Parent has VPC has, or will have prior to the Closing Date, delivered to PurchaserVPC, with respect to each VPC Employee Benefit Plan, true and complete copies of (i) the documents embodying the plan, including, without limitation, the current plan documents and documents creating any trust maintained pursuant thereto, all amendments, group annuity contracts, insurance contracts, the most recent summary plan descriptionPlan, if any, and employee handbooks, (ii) annual reports including but not limited to Forms 5500, 990 and 1041 for handbooks governing the last two (2) years for the plan and any related trust; (iii) any communication involving the plan or any related trust to or from the Internal Revenue Service ("IRS"), Department employment of Labor ("DOL"), Pension Benefit Guaranty Corporation ("PBGC") or any other governmental authority since January 1, 1998, but excluding any IRS determination letter submission; and (iv) the most recent determination letter received from the IRS pertaining to any Employee Benefit Plan intended to qualify under Sections 401(a) or 501(c)(9) of the CodeVPC Employees.
(c) The Company VPC has no obligation to contribute to or provide benefits pursuant to, and has no other liability of any kind with respect to, (i) a "multiple employer welfare arrangement" (within the meaning of Section 3(40) of ERISA), or (ii) a "plan maintained by more than one employer" (within the meaning of Section 413(c) of the Code), (iii) a "multi-employer plan" within the meaning of Section 3(37) of ERISA), or (iv) an "employee pension benefit plan" (within the meaning of Section 3(2) of ERISA) which is subject to Title IV of ERISA.
(d) Except as otherwise set forth on Schedule 5.18 attached heretoTo the knowledge of VPC, VPC is not subject to any liens, or excise or other taxes under ERISA, the Company is not liable for, and neither the Company nor Purchaser will be liable for, any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost assessment Code or other similar type of liability or expense of any ERISA Affiliate (including predecessors thereof) with regard applicable law relating to any VPC Employee Benefit Plan maintained, sponsored or contributed Plan.
(e) The consummation of the Transactions will not give rise to by an ERISA Affiliate (if a like definition of Employee Benefit Plan were applicable any liability for any employee benefits to the ERISA Affiliate in the same manner as it applies to the Company)any VPC Employee, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA, liabilities to the PBGC, or liabilities under Section 412 of the Code or Section 302(a) of ERISAliability.
(ef) The Company has complied No VPC Employee Benefit Plan in all respects with the applicable requirements any way provides for any benefits of any kind whatsoever (other than under Section 4980B of the Code and Section 601 et seq. Part 6 of ERISA (such statutory provisions and predecessors thereof are referred to herein collectively as "COBRA").
(f) With respect to each Subtitle B of Title I of ERISA, the Federal Social Security Act or any MIAO Employee Benefit Plan and except as otherwise set forth on Schedule 5.18 attached hereto:
(i) each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received Code) to any VPC Employee who, at the time the benefit is to be provided, is a determination letter from the IRS former director or employee of, other provider of services to the effect that the MIAO or an VPC ERISA Affiliate (or a beneficiary of any such person).
(g) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any VPC Employee Benefit Plan which is qualified under Section 401 attributable to any period or any portion of any period prior to the Code and that any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of Closing will be paid by VPC or bill xx reflected on the Code, and nothing has occurred orFinancial Statements.
(h) Except as disclosed on SCHEDULE 6.19(h), to the knowledge of the Company and ParentVPC, is expected to occur that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) all payments required by the Employee Benefit Plan or by law (including all contributions, insurance premiums, premiums due the PBGC or intercompany charges) with respect to all periods through the date hereof have been made;
(iii) there are no violations of or failures to comply with ERISA and the Code with respect to the filing of applicable reports, documents, and notices regarding the Employee Benefit Plan with DOL, the IRS, the PBGC or any other governmental authority, or any of the assets of the Employee Benefit Plan or any related trust;
(iv) no claimsclaim, lawsuit, arbitration or other action has been asserted or instituted or, to the knowledge of the Company and Parent, or threatened in writing against the any VPC Employee Benefit Plan, any trustee or fiduciaries thereof, the Company VPC, or any VPC ERISA Affiliate, any director, officer or employee thereof, or any of the assets of the a VPC Employee Benefit Plan or any related trust, except for routine claims for benefits;.
(vi) any bonding required with respect to the Employee Benefit Plan in accordance with the applicable provisions of ERISA has been obtained and is in full force and effect;
(vi) the Employee Benefit Plan complies in all respects with and has been maintained and operated in all respects in accordance with its respective terms and the terms and the provisions of applicable law, including, without limitation, ERISA and the Code (including rules and regulations thereunderExcept as disclosed on SCHEDULE 6.19(i);
(vii) no "prohibited transaction" (within the meaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to the Employee Benefit Plan (and the transactions contemplated by this Agreement will not constitute or directly or indirectly result in such a "prohibited transaction") which has subjected or, to the knowledge of Company and ParentVPC, could reasonably be expected to subject the Company, any ERISA Affiliate or Purchaser, or any officer, director or employee of the Company, any ERISA Affiliate or Purchaser, or the Employee Benefit Plan trustee, administrator or other fiduciary, to a tax or penalty on prohibited transactions imposed by either Section 502 of ERISA or Section 4975 of the Code or any other liability with respect thereto, which tax, penalty or liability could have a Material Adverse Effect;
(viii) to the knowledge of the Company and Parent, the no VPC Employee Benefit Plan is not under audit or investigation by the IRS or the DOL or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax, interest or penalty.
(g) The Company is not subject to any liens, excise or other taxes under ERISA, the Code or other applicable law relating to any Employee Benefit Plan.
(h) None of the Employee Benefit Plans is subject to Title IV of ERISA.
(i) In the case of any Employee Benefit Plan that is a Multiemployer Plan, the Company has no withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA as a result of either a "complete withdrawal" (as defined in Section 4203 of ERISA) or a "partial withdrawal" (as defined in Section 4205 of ERISA) by the Company from such Employee Benefit Plan occurring on or prior to the date hereof.
(j) The consummation of the Transactions will not give rise to any liability for any employee benefits, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Company Employee.
(k) No amounts payable under any Employee Benefit Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as such Section of the Code is currently in effect.
(l) Except as set forth on Schedule 5.18, attached hereto, no Employee Benefit Plan provides for any health benefits (other than under COBRA, the Federal Social Security Act or any Employee Benefit Plan qualified under Section 401(a) of the Code) to any Company Employee who, at the time the health benefit is to be provided, is a former director or former employee of the Company (or a beneficiary of any such person), nor, to the knowledge of the Company and Parent, have any representations, agreements, covenants or commitments been made to provide such health benefits.
(m) Since June 30, 1999 and through the date hereof, except as set forth on Schedule 5.18 attached hereto or as required by applicable law or consistent with past practice, neither the Company nor any ERISA Affiliate has, nor will it, (i) institute or agree to institute any new employee benefit plan or practice for any Company Employee, (ii) make or agree to make any change in any Employee Benefit Plan, (iii) make or agree to make any increase in the compensation payable or to become payable by the Company or any ERISA Affiliate to any Company Employee, other than regularly scheduled increases, or (iv) except pursuant to this Agreement and except for contributions required to provide benefits pursuant to the provisions of the Employee Benefit Plans, pay or accrue or agree to pay or accrue any bonus, percentage of compensation, or other like benefit to, or for the credit of, any Company Employee.
(n) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any Employee Benefit Plan which is attributable to any period or any portion of any period prior to the Closing shall, to the extent required by GAAP, be reflected as a liability on the Closing Balance Sheet, including, without limitation, any portion of the matching contribution required with respect to the Parent Plan for the plan year ending after the Closing which is attributable to elective contributions made by Company Employees in such plan prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Backgenesis Inc)
Employee Benefit Plans; Employees. Except as to any noncompliance with any of the following provisions that would not, individually, or in the aggregate, have a Material Adverse Effect:
(a) Schedule 5.18 SCHEDULE 6.19 sets forth a list of each material "employee benefit plan" (as defined by Section 3(33(e) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), ) and any other bonus, profit sharing, pension, material compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, scholarship, disability, sick leave, vacation, bonus, retention, or other planagreement, agreementpolicy, or arrangement (each such plan, agreement agreement, policy, or arrangement is referred to herein as an a "CCI Employee Benefit Plan"," and, and collectively, the "CCI Employee Benefit Plans") that is currently in effect for the benefit of employees (iand their beneficiaries) directors of CCI or employees any of the Company, (ii) former directors or employees of the Company, or (iii) beneficiaries of anyone described in (i) or (ii) its Subsidiaries (collectively, "Company CCI Employees") or with respect to which the Company CCI or any "CCI ERISA Affiliate" (hereby defined to include any trade or business, whether or not incorporated, other than the CompanyCCI, which has employees who are treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) has any obligation on behalf of any Company Employee. Except as disclosed on Schedule 5.18 attached hereto, there are no other benefits to which any Company Employee is entitled for which the Company has any obligationCCI).
(b) Parent has CCI has, or will have prior to the Schedule Delivery Date, delivered to PurchaserCCI, with respect to each CCI Employee Benefit Plan, true and complete copies of (i) the documents embodying the plan, including, without limitation, the current plan documents and documents creating any trust maintained pursuant thereto, all amendments, group annuity contracts, insurance contracts, the most recent summary plan descriptionPlan, if any, and employee handbooks, (ii) annual reports including but not limited to Forms 5500, 990 and 1041 for handbooks governing the last two (2) years for the plan and any related trust; (iii) any communication involving the plan or any related trust to or from the Internal Revenue Service ("IRS"), Department employment of Labor ("DOL"), Pension Benefit Guaranty Corporation ("PBGC") or any other governmental authority since January 1, 1998, but excluding any IRS determination letter submission; and (iv) the most recent determination letter received from the IRS pertaining to any Employee Benefit Plan intended to qualify under Sections 401(a) or 501(c)(9) of the CodeCCI Employees.
(c) The Company Neither CCI nor any Subsidiary has no any obligation to contribute to or provide benefits pursuant to, and has no other liability of any kind with respect to, (i) a "multiple employer welfare arrangement" (within the meaning of Section 3(40) of ERISA), or (ii) a "plan maintained by more than one employer" (within the meaning of Section 413(c) of the Code), (iii) a "multi-employer plan" within the meaning of Section 3(37) of ERISA), or (iv) an "employee pension benefit plan" (within the meaning of Section 3(2) of ERISA) which is subject to Title IV of ERISA.
(d) Except as otherwise set forth on Schedule 5.18 attached heretoTo the knowledge of CCI, neither CCI nor any Subsidiary is subject to any liens, or excise or other taxes under ERISA, the Company is not liable for, and neither the Company nor Purchaser will be liable for, any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost assessment Code or other similar type of liability or expense of any ERISA Affiliate (including predecessors thereof) with regard applicable law relating to any CCI Employee Benefit Plan maintained, sponsored or contributed Plan.
(e) The consummation of the Transactions will not give rise to by an ERISA Affiliate (if a like definition of Employee Benefit Plan were applicable any liability for any employee benefits to the ERISA Affiliate in the same manner as it applies to the Company)any CCI Employee, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA, liabilities to the PBGC, or liabilities under Section 412 of the Code or Section 302(a) of ERISAliability.
(ef) The Company has complied No CCI Employee Benefit Plan in all respects with the applicable requirements any way provides for any benefits of any kind whatsoever (other than under Section 4980B of the Code and Section 601 et seq. Part 6 of ERISA (such statutory provisions and predecessors thereof are referred to herein collectively as "COBRA").
(f) With respect to each Subtitle B of Title I of ERISA, the Federal Social Security Act or any CCI Employee Benefit Plan and except as otherwise set forth on Schedule 5.18 attached hereto:
(i) each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received Code) to any CCI Employee who, at the time the benefit is to be provided, is a determination letter from the IRS former director or employee of, other provider of services to the effect that the CCI or an CCI ERISA Affiliate (or a beneficiary of any such person).
(g) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any CCI Employee Benefit Plan which is qualified under Section 401 attributable to any period or any portion of any period prior to the Code and that any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of Closing will be paid by MIOA or a Subsidiary or will be reflected on the Code, and nothing has occurred orHistorical Financials.
(h) Except as disclosed on SCHEDULE 6.19(H), to the knowledge of the Company and ParentCCI, is expected to occur that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) all payments required by the Employee Benefit Plan or by law (including all contributions, insurance premiums, premiums due the PBGC or intercompany charges) with respect to all periods through the date hereof have been made;
(iii) there are no violations of or failures to comply with ERISA and the Code with respect to the filing of applicable reports, documents, and notices regarding the Employee Benefit Plan with DOL, the IRS, the PBGC or any other governmental authority, or any of the assets of the Employee Benefit Plan or any related trust;
(iv) no claimsclaim, lawsuit, arbitration or other action has been asserted or instituted or, to the knowledge of the Company and Parent, or threatened in writing against the any CCI Employee Benefit Plan, any trustee or fiduciaries thereof, the Company CCI, any of its Subsidiaries or any CCI ERISA Affiliate, any director, officer or employee thereof, or any of the assets of the a CCI Employee Benefit Plan or any related trust, except for routine claims for benefits;.
(vi) any bonding required with respect to the Employee Benefit Plan in accordance with the applicable provisions of ERISA has been obtained and is in full force and effect;
(vi) the Employee Benefit Plan complies in all respects with and has been maintained and operated in all respects in accordance with its respective terms and the terms and the provisions of applicable law, including, without limitation, ERISA and the Code (including rules and regulations thereunderExcept as disclosed on SCHEDULE 6.19(I);
(vii) no "prohibited transaction" (within the meaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to the Employee Benefit Plan (and the transactions contemplated by this Agreement will not constitute or directly or indirectly result in such a "prohibited transaction") which has subjected or, to the knowledge of Company and ParentCCI, could reasonably be expected to subject the Company, any ERISA Affiliate or Purchaser, or any officer, director or employee of the Company, any ERISA Affiliate or Purchaser, or the Employee Benefit Plan trustee, administrator or other fiduciary, to a tax or penalty on prohibited transactions imposed by either Section 502 of ERISA or Section 4975 of the Code or any other liability with respect thereto, which tax, penalty or liability could have a Material Adverse Effect;
(viii) to the knowledge of the Company and Parent, the no CCI Employee Benefit Plan is not under audit or investigation by the IRS or the DOL or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax, interest or penalty.
(g) The Company is not subject to any liens, excise or other taxes under ERISA, the Code or other applicable law relating to any Employee Benefit Plan.
(h) None of the Employee Benefit Plans is subject to Title IV of ERISA.
(i) In the case of any Employee Benefit Plan that is a Multiemployer Plan, the Company has no withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA as a result of either a "complete withdrawal" (as defined in Section 4203 of ERISA) or a "partial withdrawal" (as defined in Section 4205 of ERISA) by the Company from such Employee Benefit Plan occurring on or prior to the date hereof.
(j) The consummation of the Transactions will not give rise to any liability for any employee benefitsSince December 31, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Company Employee.
(k) No amounts payable under any Employee Benefit Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as such Section of the Code is currently in effect.
(l) Except as set forth on Schedule 5.18, attached hereto, no Employee Benefit Plan provides for any health benefits (other than under COBRA, the Federal Social Security Act or any Employee Benefit Plan qualified under Section 401(a) of the Code) to any Company Employee who, at the time the health benefit is to be provided, is a former director or former employee of the Company (or a beneficiary of any such person), nor, to the knowledge of the Company and Parent, have any representations, agreements, covenants or commitments been made to provide such health benefits.
(m) Since June 30, 1999 1998 and through the date hereof, and except as set forth on Schedule 5.18 attached hereto or as required by applicable law or consistent with past practiceSCHEDULE 6.19(J), neither the Company CCI, any of its Subsidiaries nor any CCI ERISA Affiliate has, nor will it, (i) institute or agree to institute any new employee benefit plan CCI Employee Benefit Plan or practice for any Company Employeepractice, (ii) make or agree to make any change in any CCI Employee Benefit Plan, (iii) make or agree to make any increase in the compensation payable or to become payable by the Company CCI, any of its Subsidiaries or any CCI ERISA Affiliate to any Company CCI Employee, other than regularly scheduled increasesexcept for normal periodic salary increases consistent with past practices, or (iv) except pursuant to this Agreement and except for contributions required to provide benefits pursuant to the provisions of the CCI Employee Benefit Plans, pay or accrue or agree to pay or accrue any bonus, percentage of compensation, or other like benefit to, or for the credit of, any Company CCI Employee.
(nk) Any contribution, insurance premium, excise tax, interest charge There are no collective bargaining or other liability or charge imposed or required with respect labor union agreements to any Employee Benefit Plan which is attributable to any period CCI or any portion of its Subsidiaries is a party or by which any period prior to the Closing shall, to the extent required by GAAP, be reflected as a liability on the Closing Balance Sheet, including, without limitation, any portion of the matching contribution required with respect to the Parent Plan for the plan year ending after the Closing which them is attributable to elective contributions made by Company Employees in such plan prior to the Closingbound.
Appears in 1 contract
Samples: Stock Exchange Agreement (Medical Industries of America Inc)
Employee Benefit Plans; Employees. Except as to any noncompliance with any of the following provisions that would not, individually, or in the aggregate, have a Material Adverse Effect:
(a) Schedule 5.18 sets forth a list of each "employee benefit plan" (as defined by Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and any other bonus, profit sharing, pension, compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, scholarship, disability, sick leave, vacation, bonus, retention, or other plan, agreement, or arrangement (each such plan, agreement or arrangement is referred to herein as an "Employee Benefit Plan", and collectively, the "Employee Benefit Plans") that is currently in effect for the benefit of (i) directors or employees of the Company, (ii) former directors or employees of the Company, or (iii) beneficiaries of anyone described in (i) or (ii) (collectively, "Company Employees") or with respect to which the Company or any "ERISA Affiliate" (hereby defined to include any trade or business, whether or not incorporated, other than the Company, which has employees who are treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) has any obligation on behalf of any Company Employee. Except as disclosed on Schedule 5.18 attached hereto, there are no other benefits to which any Company Employee is entitled for which the Company has any obligation.
(b) Parent has delivered to Purchaser, with respect to each Employee Benefit Plan, true and complete copies of (i) the documents embodying the plan, including, without limitation, the current plan documents and documents creating any trust maintained pursuant thereto, all amendments, group annuity contracts, insurance contracts, the most recent summary plan description, if any, and employee handbooks, (ii) annual reports including but not limited to Forms 5500, 990 and 1041 for the last two (2) years for the plan and any related trust; (iii) any communication involving the plan or any related trust to or from the Internal Revenue Service ("IRS"), Department of Labor ("DOL"), Pension Benefit Guaranty Corporation ("PBGC") or any other governmental authority since January 1, 1998, but excluding any IRS determination letter submission; and (iv) the most recent determination letter received from the IRS pertaining to any Employee Benefit Plan intended to qualify under Sections 401(a) or 501(c)(9) of the Code.
(c) The Company has no obligation to contribute to or provide benefits pursuant to, and has no other liability of any kind with respect to, (i) a "multiple employer welfare arrangement" (within the meaning of Section 3(40) of ERISA), or (ii) a "plan maintained by more than one employer" (within the meaning of Section 413(c) of the Code).
(d) Except as otherwise set forth on Schedule 5.18 attached hereto, the Company is not liable for, and neither the Company nor Purchaser will be liable for, any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost assessment or other similar type of liability or expense of any ERISA Affiliate (including predecessors thereof) with regard to any Employee Benefit Plan maintained, sponsored or contributed to by an ERISA Affiliate (if a like definition of Employee Benefit Plan were applicable to the ERISA Affiliate in the same manner as it applies to the Company), including, without limitation, withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA, liabilities to the PBGC, or liabilities under Section 412 of the Code or Section 302(a) of ERISA.
(e) The Company has complied in all respects with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA (such statutory provisions and predecessors thereof are referred to herein collectively as "COBRA").
(f) With respect to each Employee Benefit Plan and except as otherwise set forth on Schedule 5.18 attached hereto:
(i) each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a determination letter from the IRS to the effect that the Employee Benefit Plan is qualified under Section 401 of the Code and that any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of the Code, and nothing has occurred or, to the knowledge of the Company and Parent, is expected to occur that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) all payments required by the Employee Benefit Plan or by law (including all contributions, insurance premiums, premiums due the PBGC or intercompany charges) with respect to all periods through the date hereof have been made;
(iii) there are no violations of or failures to comply with ERISA and the Code with respect to the filing of applicable reports, documents, and notices regarding the Employee Benefit Plan with DOL, the IRS, the PBGC or any other governmental authority, or any of the assets of the Employee Benefit Plan or any related trust;
(iv) no claims, lawsuit, arbitration or other action has been asserted or instituted or, to the knowledge of the Company and Parent, threatened in writing against the Employee Benefit Plan, any trustee or fiduciaries thereof, the Company or any ERISA Affiliate, any director, officer or employee thereof, or any of the assets of the Employee Benefit Plan or any related trust, except for routine claims for benefits;
(v) any bonding required with respect to the Employee Benefit Plan in accordance with the applicable provisions of ERISA has been obtained and is in full force and effect;
(vi) the Employee Benefit Plan complies in all respects with and has been maintained and operated in all respects in accordance with its respective terms and the terms and the provisions of applicable law, including, without limitation, ERISA and the Code (including rules and regulations thereunder);
(vii) no "prohibited transaction" (within the meaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to the Employee Benefit Plan (and the transactions contemplated by this Agreement will not constitute or directly or indirectly result in such a "prohibited transaction") which has subjected or, to the knowledge of Company and Parent, could reasonably be expected to subject the Company, any ERISA Affiliate or Purchaser, or any officer, director or employee of the Company, any ERISA Affiliate or Purchaser, or the Employee Benefit Plan trustee, administrator or other fiduciary, to a tax or penalty on prohibited transactions imposed by either Section 502 of ERISA or Section 4975 of the Code or any other liability with respect thereto, which tax, penalty or liability could have a Material Adverse Effect;
(viii) to the knowledge of the Company and Parent, the Employee Benefit Plan is not under audit or investigation by the IRS or the DOL or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax, interest or penalty.
(g) The Company is not subject to any liens, excise or other taxes under ERISA, the Code or other applicable law relating to any Employee Benefit Plan.
(h) None of the Employee Benefit Plans is subject to Title IV of ERISA.
(i) In the case of any Employee Benefit Plan that is a Multiemployer Plan, the Company has no withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA as a result of either a "complete withdrawal" (as defined in Section 4203 of ERISA) or a "partial withdrawal" (as defined in Section 4205 of ERISA) by the Company from such Employee Benefit Plan occurring on or prior to the date hereof.
(j) The consummation of the Transactions will not give rise to any liability for any employee benefits, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Company Employee.
(k) No amounts payable under any Employee Benefit Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as such Section of the Code is currently in effect.
(l) Except as set forth on Schedule 5.18, attached hereto, no Employee Benefit Plan provides for any health benefits (other than under COBRA, the Federal Social Security Act or any Employee Benefit Plan qualified under Section 401(a) of the Code) to any Company Employee who, at the time the health benefit is to be provided, is a former director or former employee of the Company (or a beneficiary of any such person), nor, to the knowledge of the Company and Parent, have any representations, agreements, covenants or commitments been made to provide such health benefits.
(m) Since June 30March 31, 1999 and through the date hereof, except as set forth on Schedule 5.18 attached hereto or as required by applicable law or consistent with past practice, neither the Company nor any ERISA Affiliate has, nor will it, (i) institute or agree to institute any new employee benefit plan or practice for any Company Employee, (ii) make or agree to make any change in any Employee Benefit Plan, (iii) make or agree to make any increase in the compensation payable or to become payable by the Company or any ERISA Affiliate to any Company Employee, other than regularly scheduled increases, or (iv) except pursuant to this Agreement and except for contributions required to provide benefits pursuant to the provisions of the Employee Benefit Plans, pay or accrue or agree to pay or accrue any bonus, percentage of compensation, or other like benefit to, or for the credit of, any Company Employee.
(n) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any Employee Benefit Plan which is attributable to any period or any portion of any period prior to the Closing shall, to the extent required by GAAP, be reflected as a liability on the Closing Balance Sheet, including, without limitation, any portion of the matching contribution required with respect to the Parent Plan for the plan year ending after the Closing which is attributable to elective contributions made by Company Employees in such plan prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Mestek Inc)
Employee Benefit Plans; Employees. Except as to any noncompliance with any of the following provisions that would not, individually, or in the aggregate, have a Material Adverse Effect:
(a) Schedule 5.18 SCHEDULE 5.19 sets forth a list of each material "employee benefit plan" (as defined by Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), ) and any other bonus, profit sharing, pension, material compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, scholarship, disability, sick leave, vacation, bonus, retention, or other planagreement, agreementpolicy, or arrangement (each such plan, agreement agreement, policy, or arrangement is referred to herein as an a "MIOA Employee Benefit Plan", and collectively, the "MIOA Employee Benefit Plans") that is currently in effect for the benefit of employees (iand their beneficiaries) directors of MIOA or employees any of the Company, (ii) former directors or employees of the Company, or (iii) beneficiaries of anyone described in (i) or (ii) its Subsidiaries (collectively, "Company MIOA Employees") or with respect to which the Company MIOA or any "MIOA ERISA Affiliate" (hereby defined to include any trade or business, whether or not incorporated, other than the CompanyMIOA, which has employees who are treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) has any obligation on behalf of any Company Employee. Except as disclosed on Schedule 5.18 attached hereto, there are no other benefits to which any Company Employee is entitled for which the Company has any obligationMIOA).
(b) Parent has MIOA has, or will have prior to the Schedule Delivery Date, delivered to PurchaserPHC, with respect to each MIOA Employee Benefit Plan, true and complete copies of (i) the documents embodying the plan, including, without limitation, the current plan documents and documents creating any trust maintained pursuant thereto, all amendments, group annuity contracts, insurance contracts, the most recent summary plan descriptionPlan, if any, and employee handbooks, (ii) annual reports including but not limited to Forms 5500, 990 and 1041 for handbooks governing the last two (2) years for the plan and any related trust; (iii) any communication involving the plan or any related trust to or from the Internal Revenue Service ("IRS"), Department employment of Labor ("DOL"), Pension Benefit Guaranty Corporation ("PBGC") or any other governmental authority since January 1, 1998, but excluding any IRS determination letter submission; and (iv) the most recent determination letter received from the IRS pertaining to any Employee Benefit Plan intended to qualify under Sections 401(a) or 501(c)(9) of the CodeMIOA Employees.
(c) The Company Neither MIOA nor any Subsidiary has no any obligation to contribute to or provide benefits pursuant to, and has no other liability of any kind with respect to, (i) a "multiple employer welfare arrangement" (within the meaning of Section 3(40) of ERISA), or (ii) a "plan maintained by more than one employer" (within the meaning of Section 413(c) of the Code).
(d) Except as otherwise set forth on Schedule 5.18 attached hereto, the Company is not liable for, and neither the Company nor Purchaser will be liable for, any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost assessment or other similar type of liability or expense of any ERISA Affiliate (including predecessors thereof) with regard to any Employee Benefit Plan maintained, sponsored or contributed to by an ERISA Affiliate (if a like definition of Employee Benefit Plan were applicable to the ERISA Affiliate in the same manner as it applies to the Company), including, without limitation, withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA, liabilities to the PBGC, or liabilities under Section 412 of the Code or Section 302(a) of ERISA.
(e) The Company has complied in all respects with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA (such statutory provisions and predecessors thereof are referred to herein collectively as "COBRA").
(f) With respect to each Employee Benefit Plan and except as otherwise set forth on Schedule 5.18 attached hereto:
(i) each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a determination letter from the IRS to the effect that the Employee Benefit Plan is qualified under Section 401 of the Code and that any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of the Code, and nothing has occurred or, to the knowledge of the Company and Parent, is expected to occur that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) all payments required by the Employee Benefit Plan or by law (including all contributions, insurance premiums, premiums due the PBGC or intercompany charges) with respect to all periods through the date hereof have been made;
(iii) there are no violations of or failures to comply with ERISA and the Code with respect to the filing of applicable reports, documents, and notices regarding the Employee Benefit Plan with DOL, the IRS, the PBGC or any other governmental authority, or any of the assets of the Employee Benefit Plan or any related trust;
(iv) no claims, lawsuit, arbitration or other action has been asserted or instituted or, to the knowledge of the Company and Parent, threatened in writing against the Employee Benefit Plan, any trustee or fiduciaries thereof, the Company or any ERISA Affiliate, any director, officer or employee thereof, or any of the assets of the Employee Benefit Plan or any related trust, except for routine claims for benefits;
(v) any bonding required with respect to the Employee Benefit Plan in accordance with the applicable provisions of ERISA has been obtained and is in full force and effect;
(vi) the Employee Benefit Plan complies in all respects with and has been maintained and operated in all respects in accordance with its respective terms and the terms and the provisions of applicable law, including, without limitation, ERISA and the Code (including rules and regulations thereunder);
(vii) no a "prohibited transactionmultiemployer plan" (within the meaning of Section 4975 3(37) of ERISA), or (iv) a "employee pension benefit plan" (within the Code and meaning of Section 406 3(2) of ERISA) has occurred or is reasonably expected to occur with respect to the Employee Benefit Plan (and the transactions contemplated by this Agreement will not constitute or directly or indirectly result in such a "prohibited transaction") which has subjected or, to the knowledge of Company and Parent, could reasonably be expected to subject the Company, any ERISA Affiliate or Purchaser, or any officer, director or employee of the Company, any ERISA Affiliate or Purchaser, or the Employee Benefit Plan trustee, administrator or other fiduciary, to a tax or penalty on prohibited transactions imposed by either Section 502 of ERISA or Section 4975 of the Code or any other liability with respect thereto, which tax, penalty or liability could have a Material Adverse Effect;
(viii) to the knowledge of the Company and Parent, the Employee Benefit Plan is not under audit or investigation by the IRS or the DOL or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax, interest or penalty.
(g) The Company is not subject to any liens, excise or other taxes under ERISA, the Code or other applicable law relating to any Employee Benefit Plan.
(h) None of the Employee Benefit Plans is subject to Title IV of ERISA.
(i) In the case of any Employee Benefit Plan that is a Multiemployer Plan, the Company has no withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA as a result of either a "complete withdrawal" (as defined in Section 4203 of ERISA) or a "partial withdrawal" (as defined in Section 4205 of ERISA) by the Company from such Employee Benefit Plan occurring on or prior to the date hereof.
(j) The consummation of the Transactions will not give rise to any liability for any employee benefits, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Company Employee.
(k) No amounts payable under any Employee Benefit Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as such Section of the Code is currently in effect.
(l) Except as set forth on Schedule 5.18, attached hereto, no Employee Benefit Plan provides for any health benefits (other than under COBRA, the Federal Social Security Act or any Employee Benefit Plan qualified under Section 401(a) of the Code) to any Company Employee who, at the time the health benefit is to be provided, is a former director or former employee of the Company (or a beneficiary of any such person), nor, to the knowledge of the Company and Parent, have any representations, agreements, covenants or commitments been made to provide such health benefits.
(m) Since June 30, 1999 and through the date hereof, except as set forth on Schedule 5.18 attached hereto or as required by applicable law or consistent with past practice, neither the Company nor any ERISA Affiliate has, nor will it, (i) institute or agree to institute any new employee benefit plan or practice for any Company Employee, (ii) make or agree to make any change in any Employee Benefit Plan, (iii) make or agree to make any increase in the compensation payable or to become payable by the Company or any ERISA Affiliate to any Company Employee, other than regularly scheduled increases, or (iv) except pursuant to this Agreement and except for contributions required to provide benefits pursuant to the provisions of the Employee Benefit Plans, pay or accrue or agree to pay or accrue any bonus, percentage of compensation, or other like benefit to, or for the credit of, any Company Employee.
(n) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any Employee Benefit Plan which is attributable to any period or any portion of any period prior to the Closing shall, to the extent required by GAAP, be reflected as a liability on the Closing Balance Sheet, including, without limitation, any portion of the matching contribution required with respect to the Parent Plan for the plan year ending after the Closing which is attributable to elective contributions made by Company Employees in such plan prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Medical Industries of America Inc)
Employee Benefit Plans; Employees. Except as to any noncompliance with any of the following provisions that would not, individually, or in the aggregate, have a Material Adverse Effect:
(a) Schedule 5.18 SCHEDULE 5.19 sets forth a list of each material "employee benefit plan" (as defined by Section 3(33(e) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), ) and any other bonus, profit sharing, pension, material compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, scholarship, disability, sick leave, vacation, bonus, retention, or other planagreement, agreementpolicy, or arrangement (each such plan, agreement agreement, policy, or arrangement is referred to herein as an a "MIS Employee Benefit Plan"," and, and collectively, the "MIS Employee Benefit Plans") that is currently in effect for the benefit of employees (iand their beneficiaries) directors of MIS or employees any of the Company, (ii) former directors or employees of the Company, or (iii) beneficiaries of anyone described in (i) or (ii) its Subsidiaries (collectively, "Company MIS Employees") or with respect to which the Company MIS or any "MIS ERISA Affiliate" (hereby defined to include any trade or business, whether or not incorporated, other than the CompanyMIS, which has employees who are treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) has any obligation on behalf of any Company Employee. Except as disclosed on Schedule 5.18 attached hereto, there are no other benefits to which any Company Employee is entitled for which the Company has any obligationMIS).
(b) Parent has MIS has, or will have prior to the Closing Date, delivered to PurchaserVPC, with respect to each MIS Employee Benefit Plan, true and complete copies of (i) the documents embodying the plan, including, without limitation, the current plan documents and documents creating any trust maintained pursuant thereto, all amendments, group annuity contracts, insurance contracts, the most recent summary plan descriptionPlan, if any, and employee handbooks, (ii) annual reports including but not limited to Forms 5500, 990 and 1041 for handbooks governing the last two (2) years for the plan and any related trust; (iii) any communication involving the plan or any related trust to or from the Internal Revenue Service ("IRS"), Department employment of Labor ("DOL"), Pension Benefit Guaranty Corporation ("PBGC") or any other governmental authority since January 1, 1998, but excluding any IRS determination letter submission; and (iv) the most recent determination letter received from the IRS pertaining to any Employee Benefit Plan intended to qualify under Sections 401(a) or 501(c)(9) of the CodeMIS Employees.
(c) The Company Neither MIS nor any Subsidiary has no any obligation to contribute to or provide benefits pursuant to, and has no other liability of any kind with respect to, (i) a "multiple employer welfare arrangement" (within the meaning of Section 3(40) of ERISA), or (ii) a "plan maintained by more than one employer" (within the meaning of Section 413(c) of the Code), (iii) a "multi-employer plan" within the meaning of Section 3(37) of ERISA), or (iv) an "employee pension benefit plan" (within the meaning of Section 3(2) of ERISA) which is subject to Title IV of ERISA.
(d) Except as otherwise set forth on Schedule 5.18 attached heretoTo the knowledge of MIS, neither MIS nor any Subsidiary is subject to any liens, or excise or other taxes under ERISA, the Company is not liable for, and neither the Company nor Purchaser will be liable for, any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost assessment Code or other similar type of liability or expense of any ERISA Affiliate (including predecessors thereof) with regard applicable law relating to any MIS Employee Benefit Plan maintained, sponsored or contributed Plan.
(e) The consummation of the Transactions will not give rise to by an ERISA Affiliate (if a like definition of Employee Benefit Plan were applicable any liability for any employee benefits to the ERISA Affiliate in the same manner as it applies to the Company)any MIS Employee, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA, liabilities to the PBGC, or liabilities under Section 412 of the Code or Section 302(a) of ERISAliability.
(ef) The Company has complied No MIS Employee Benefit Plan in all respects with the applicable requirements any way provides for any benefits of any kind whatsoever (other than under Section 4980B of the Code and Section 601 et seq. Part 6 of ERISA (such statutory provisions and predecessors thereof are referred to herein collectively as "COBRA").
(f) With respect to each Subtitle B of Title I of ERISA, the Federal Social Security Act or any MIS Employee Benefit Plan and except as otherwise set forth on Schedule 5.18 attached hereto:
(i) each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received Code) to any MIS Employee who, at the time the benefit is to be provided, is a determination letter from the IRS former director or employee of, other provider of services to the effect that the MIS or an MIS ERISA Affiliate (or a beneficiary of any such person).
(g) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any MIS Employee Benefit Plan which is qualified under Section 401 attributable to any period or any portion of any period prior to the Code and that any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of Closing will be paid by MIS or a Subsidiary or bill xx reflected on the Code, and nothing has occurred orFinancial Statements.
(h) Except as disclosed on SCHEDULE 5.19(h), to the knowledge of the Company and ParentMIS, is expected to occur that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) all payments required by the Employee Benefit Plan or by law (including all contributions, insurance premiums, premiums due the PBGC or intercompany charges) with respect to all periods through the date hereof have been made;
(iii) there are no violations of or failures to comply with ERISA and the Code with respect to the filing of applicable reports, documents, and notices regarding the Employee Benefit Plan with DOL, the IRS, the PBGC or any other governmental authority, or any of the assets of the Employee Benefit Plan or any related trust;
(iv) no claimsclaim, lawsuit, arbitration or other action has been asserted or instituted or, to the knowledge of the Company and Parent, or threatened in writing against the any MIS Employee Benefit Plan, any trustee or fiduciaries thereof, the Company MIS, any of its Subsidiaries or any MIS ERISA Affiliate, any director, officer or employee thereof, or any of the assets of the an MIS Employee Benefit Plan or any related trust, except for routine claims for benefits;.
(vi) any bonding required with respect to the Employee Benefit Plan in accordance with the applicable provisions of ERISA has been obtained and is in full force and effect;
(vi) the Employee Benefit Plan complies in all respects with and has been maintained and operated in all respects in accordance with its respective terms and the terms and the provisions of applicable law, including, without limitation, ERISA and the Code (including rules and regulations thereunderExcept as disclosed on SCHEDULE 5.19(i);
(vii) no "prohibited transaction" (within the meaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to the Employee Benefit Plan (and the transactions contemplated by this Agreement will not constitute or directly or indirectly result in such a "prohibited transaction") which has subjected or, to the knowledge of Company and ParentMIS, could reasonably be expected to subject the Company, any ERISA Affiliate or Purchaser, or any officer, director or employee of the Company, any ERISA Affiliate or Purchaser, or the Employee Benefit Plan trustee, administrator or other fiduciary, to a tax or penalty on prohibited transactions imposed by either Section 502 of ERISA or Section 4975 of the Code or any other liability with respect thereto, which tax, penalty or liability could have a Material Adverse Effect;
(viii) to the knowledge of the Company and Parent, the no MIS Employee Benefit Plan is not under audit or investigation by the IRS or the DOL or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax, interest or penalty.
(g) The Company is not subject to any liens, excise or other taxes under ERISA, the Code or other applicable law relating to any Employee Benefit Plan.
(h) None of the Employee Benefit Plans is subject to Title IV of ERISA.
(i) In the case of any Employee Benefit Plan that is a Multiemployer Plan, the Company has no withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA as a result of either a "complete withdrawal" (as defined in Section 4203 of ERISA) or a "partial withdrawal" (as defined in Section 4205 of ERISA) by the Company from such Employee Benefit Plan occurring on or prior to the date hereof.
(j) The consummation of the Transactions will not give rise to any liability for any employee benefits, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Company Employee.
(k) No amounts payable under any Employee Benefit Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as such Section of the Code is currently in effect.
(l) Except as set forth on Schedule 5.18, attached hereto, no Employee Benefit Plan provides for any health benefits (other than under COBRA, the Federal Social Security Act or any Employee Benefit Plan qualified under Section 401(a) of the Code) to any Company Employee who, at the time the health benefit is to be provided, is a former director or former employee of the Company (or a beneficiary of any such person), nor, to the knowledge of the Company and Parent, have any representations, agreements, covenants or commitments been made to provide such health benefits.
(m) Since June 30, 1999 and through the date hereof, except as set forth on Schedule 5.18 attached hereto or as required by applicable law or consistent with past practice, neither the Company nor any ERISA Affiliate has, nor will it, (i) institute or agree to institute any new employee benefit plan or practice for any Company Employee, (ii) make or agree to make any change in any Employee Benefit Plan, (iii) make or agree to make any increase in the compensation payable or to become payable by the Company or any ERISA Affiliate to any Company Employee, other than regularly scheduled increases, or (iv) except pursuant to this Agreement and except for contributions required to provide benefits pursuant to the provisions of the Employee Benefit Plans, pay or accrue or agree to pay or accrue any bonus, percentage of compensation, or other like benefit to, or for the credit of, any Company Employee.
(n) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any Employee Benefit Plan which is attributable to any period or any portion of any period prior to the Closing shall, to the extent required by GAAP, be reflected as a liability on the Closing Balance Sheet, including, without limitation, any portion of the matching contribution required with respect to the Parent Plan for the plan year ending after the Closing which is attributable to elective contributions made by Company Employees in such plan prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Backgenesis Inc)
Employee Benefit Plans; Employees. Except as to any noncompliance with any of the following provisions that would not, individually, individually or in the aggregate, have a Company Material Adverse Effect:
(a) Without regard to materiality, Schedule 5.18 sets forth a list of each "employee benefit plan" (as defined by Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and any other bonus, profit sharing, pension, compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, post-retirement, scholarship, disability, sick leave, vacation, individual employment, commission, bonus, payroll practice, retention, or other plan, agreement, policy or arrangement (each such plan, agreement agreement, policy or arrangement is referred to herein as an "Employee Benefit Plan", and collectively, the "Employee Benefit Plans") that is currently in effect effect, was maintained since December 31, 1991 or which has been approved before the date hereof but is not yet effective, for the benefit of (i) directors or employees of the Company or any other persons performing services for the Company, (ii) former directors or employees of the Company or any other persons formerly performing services for the Company, or (iii) beneficiaries of anyone described in (i) or (ii) (collectively, "Company Employees") or with respect to which the Company or any "ERISA Affiliate" (hereby defined to include any trade or business, whether or not incorporated, other than the Company, which has employees who are or have been at any date of determination occurring within the preceding six (6) years, treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) has or has had any obligation on behalf of any Company Employee. Except as disclosed on Schedule 5.18 attached hereto, without regard to materiality, there are no other benefits to which any Company Employee is entitled or for which the Company has any obligation.
(b) Parent Without regard to materiality, the Company has delivered to Purchaser, with respect to each Employee Benefit Plan, true and complete copies of (i) the documents embodying and relating to the plan, including, without limitation, the current plan documents and documents creating any trust maintained pursuant thereto, all amendments, investment management agreements, administrative service contracts, group annuity contracts, insurance contracts, the most recent summary plan descriptiondescription with each summary of material modification, if any, and employee handbooks, (ii) annual reports including but not limited to Forms 5500, 990 and 1041 for the last two three (23) years for the plan and any related trust; , (iii) any actuarial valuation reports and financial statements for the last three years, and (iv) each material communication involving the plan or any related trust to or from the Internal Revenue Service ("IRS"), Department of Labor ("DOL"), Pension Benefit Guaranty Corporation ("PBGC") or any other governmental authority since January 1, 1998, 1995 (but excluding any IRS determination letter submission; and (iv) application), including, without limitation, the most recent determination letter received from the IRS pertaining to any Employee Benefit Plan intended to qualify under Sections 401(a) or 501(c)(9) of the Code.
(c) The Company has no obligation to contribute to or provide benefits pursuant to, and has no other liability of any kind with respect to, (i) a "multiple employer welfare arrangement" (within the meaning of Section 3(40) of ERISA), or (ii) a "plan maintained by more than one employer" (within the meaning of Section 413(c) of the Code).
(d) Except as otherwise set forth on Schedule 5.18 attached hereto, the Company is not liable for, for and neither the Company nor Purchaser will be liable for, any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost assessment or other similar type of liability or expense of any ERISA Affiliate (including predecessors thereof) with regard to any Employee Benefit Plan maintained, sponsored or contributed to by an ERISA Affiliate (if a like definition of Employee Benefit Plan were applicable to the ERISA Affiliate in the same manner as it applies to the Company), including, without limitation, withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA, liabilities to the PBGC, or liabilities under Section 412 of the Code or Section 302(a302(a)(2) of ERISA.
(e) The Company Company, each ERISA Affiliate, each Employee Benefit Plan and each Employee Benefit Plan "sponsor" or "administrator" (within the meaning of Section 3(16) of ERISA) has complied in all respects with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA (such statutory provisions and predecessors thereof are referred to herein collectively as "COBRA"). Schedule 5.18 attached hereto lists the name of each Company Employee who has experienced a "Qualifying Event" (as defined in COBRA) with respect to an Employee Benefit Plan who is eligible for "Continuation Coverage" (as defined in COBRA) and whose maximum period for Continuation Coverage required by COBRA, or maximum period for electing such coverage, has not expired. Included in such list are the current address for each such individual, the date and type of each Qualifying Event, whether the individual has already elected Continuation Coverage and, for any individual who has not yet elected Continuation Coverage, the date on which such individual was notified of his or her rights to elect Continuation Coverage. Schedule 5.18 attached hereto also lists the name of each Company Employee who is on a leave of absence (whether or not pursuant to the Family and Medical Leave Act of 1993, as amended ("FAMLA")) and is receiving or entitled to receive health coverage under an Employee Benefit Plan, whether pursuant to FAMLA, COBRA or otherwise.
(f) With respect to each Employee Benefit Plan and except as otherwise set forth on Schedule 5.18 attached hereto:
(i) each Employee Benefit Plan Plan, other than a standardized prototype plan, that is intended to be qualified under Section 401(a) of the Code has received a determination letter from the IRS to the effect that the Employee Benefit Plan is qualified under Section 401 of the Code and that any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of the Code, and nothing has occurred or, to the knowledge of the Company and Parent, or is expected to occur that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) all payments required by the Employee Benefit Plan or by law (including all contributions, insurance premiums, premiums due the PBGC or intercompany charges) with respect to all periods through the date hereof have been made;
(iii) there are no violations of or failures to comply with ERISA and the Code with respect to the filing of applicable reports, documents, and notices regarding the Employee Benefit Plan with the DOL, the IRS, the PBGC or any other governmental authority, or any of the assets of the Employee Benefit Plan or any related trust;
(iv) no claimsclaim, lawsuit, arbitration or other action has been asserted or instituted or, or to the knowledge of the Company and Parent, threatened in writing against the Employee Benefit Plan, any trustee or fiduciaries thereof, the Company or any ERISA Affiliate, any director, officer or employee thereof, or any of the assets of the Employee Benefit Plan or any related trust, except for trust other than routine claims for benefits;
(v) all amendments required to bring the Employee Benefit Plan into conformity with applicable law, including, without limitation, ERISA and the Code, have been timely adopted;
(vi) any bonding required with respect to the Employee Benefit Plan in accordance with the applicable provisions of ERISA has been obtained and is in full force and effect;
(vivii) the Employee Benefit Plan complies in all respects with and has been maintained and operated in all respects in accordance with its respective terms and the terms and the provisions of applicable law, including, without limitation, ERISA and the Code (including rules and regulations thereunder);
(viiviii) no "prohibited transaction" (within the meaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to the Employee Benefit Plan (and the transactions contemplated by this Agreement will not constitute or directly or indirectly result in such a "prohibited transaction") which has subjected or, to the knowledge of Company and Parent, or could reasonably be expected to subject the Company, any ERISA Affiliate or Purchaser, Purchaser or any officer, director or employee of the Company, any ERISA Affiliate or PurchaserAffiliate, Purchaser or the Employee Benefit Plan trustee, administrator or other fiduciary, to a tax or penalty on prohibited transactions imposed by either Section 502 of ERISA or Section 4975 of the Code or any other liability with respect thereto, which tax, penalty or liability could have a Material Adverse Effect;
(viiiix) to the knowledge of the Company and Parent, the Employee Benefit Plan is not under audit or investigation by the IRS or the DOL or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax, interest or penalty;
(x) if the Employee Benefit Plan purports to provide benefits which qualify for tax-favored treatment under Sections 79, 105, 106, 117, 120, 125, 127, 129 or 132 of the Code, the Employee Benefit Plan satisfies the requirements of said Section(s);
(xi) the Employee Benefit Plan may be amended or terminated on no more than 90 days' notice.
(g) No Employee Benefit Plan purports to be a voluntary employee beneficiary association ("VEBA"), and no Employee Benefit Plan is subject to Title IV of ERISA.
(h) The Company is not subject to any liens, or excise or other taxes under ERISA, the Code or other applicable law relating to any Employee Benefit Plan.
(h) None of the Employee Benefit Plans is subject to Title IV of ERISA.
(i) In the case of any Employee Benefit Plan that is a Multiemployer PlanExcept as set forth on Schedule 5.18 hereto, the Company has no withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA as a result of either a "complete withdrawal" (as defined in Section 4203 of ERISA) or a "partial withdrawal" (as defined in Section 4205 of ERISA) by the Company from such Employee Benefit Plan occurring on or prior to the date hereof.
(j) The consummation of the Transactions will not give rise to any liability for any employee benefits, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Company Employee.
(kj) No amounts payable under any Employee Benefit Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as such Section section of the Code is currently in effect.
(lk) Except as set forth on Schedule 5.18, 5.18 attached hereto, no Employee Benefit Plan in any way provides for any health benefits (other than under COBRA, the Federal Social Security Act or any Employee Benefit Plan qualified under Section 401(a) of the Code) to any Company Employee who, at the time the health benefit is to be provided, is or will be a former director or former employee of the Company or an ERISA Affiliate (or a beneficiary of any such person), nor, to the knowledge of the Company and Parent, nor have any representations, agreements, covenants or commitments been made to provide such health benefits.
(ml) Since June 30December 31, 1999 1998 and through the date hereof, except as set forth on Schedule 5.18 attached hereto or as required by applicable law or consistent with past practice, neither the Company nor any ERISA Affiliate has, nor will it, has (i) institute instituted or agree agreed to institute any new employee benefit plan or practice for any Company Employeepractice, (ii) make made or agree agreed to make any change in any Employee Benefit Plan, (iii) make made or agree agreed to make any increase in the compensation payable or to become payable by the Company or any ERISA Affiliate to any Company Employee, Employee (other than regularly scheduled increases), or (iv) except pursuant to this Agreement and except for contributions required to provide benefits pursuant to the provisions of the Employee Benefit Plans, pay paid or accrue accrued or agree agreed to pay or accrue any bonus, percentage of compensation, or other like benefit to, or for the credit of, any Company Employee.
(nm) Any Without regard to materiality, any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any Employee Benefit Plan which is attributable to any period or any portion of any period prior to the Closing shall, to the extent required by GAAP, be reflected as a liability is set forth on the Closing Balance Sheet, including, without limitation, any portion of the matching contribution required with respect to the Parent Plan for the plan year ending after the Closing which is attributable to elective contributions made by Company Employees in such plan prior to the ClosingSchedule 5.18 hereof.
Appears in 1 contract
Employee Benefit Plans; Employees. Except as to any noncompliance with any of the following provisions that would not, individually, or in the aggregate, have a Material Adverse Effect:.
(a) Schedule 5.18 6.18 sets forth a list of each "employee benefit plan" (as defined by Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and any other bonus, profit sharing, pension, compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, scholarship, disability, sick leave, vacation, bonus, retention, or other plan, agreement, or arrangement (each such plan, agreement or arrangement is referred to herein as an "Employee Benefit Plan", and collectively, the "Employee Benefit Plans") Plan that is currently in effect for the benefit of (i) directors or employees of the CompanyPurchaser, (ii) former directors or employees of the CompanyPurchaser, or (iii) beneficiaries of anyone described in (i) or (ii) (collectively, "Company Purchaser Employees") or with respect to which the Company Purchaser or any "ERISA Affiliate" (hereby defined to include any trade or business, whether or not incorporated, other than the Company, which has employees who are treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) Affiliate has any obligation on behalf of any Company Purchaser Employee. Except as disclosed on Schedule 5.18 6.18 attached hereto, there are no other benefits to which any Company Purchaser Employee is entitled for which the Company Purchaser has any obligation.
(b) Parent Purchaser has delivered to PurchaserParent and the Company, with respect to each Employee Benefit Plan, true and complete copies of (i) the documents embodying the plan, including, without limitation, the current plan documents and documents creating any trust maintained pursuant thereto, all amendments, group annuity contracts, insurance contracts, the most recent summary plan description, if any, and employee handbooks, (ii) annual reports including but not limited to Forms 5500, 990 and 1041 for the last two (2) years for the plan and any related trust; (iii) any communication involving the plan or any related trust to or from the Internal Revenue Service ("IRS"), Department of Labor ("DOL"), Pension Benefit Guaranty Corporation ("PBGC") PBGC or any other governmental authority since January 1, 1998, but excluding any IRS determination letter submission; and (iv) the most recent determination letter received from the IRS pertaining to any Employee Benefit Plan intended to qualify under Sections 401(a) or 501(c)(9) of the Code.
(c) The Company Purchaser has no obligation to contribute to or provide benefits pursuant to, and has no other liability of any kind with respect to, (i) a "multiple employer welfare arrangement" (within the meaning of Section 3(40) of ERISA), or (ii) a "plan maintained by more than one employer" (within the meaning of Section 413(c) of the Code).
(d) Except as otherwise set forth on Schedule 5.18 6.18 attached hereto, the Company Purchaser is not liable for, and neither the Company nor Purchaser will be liable for, for any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost assessment or other similar type of liability or expense of any ERISA Affiliate (including predecessors thereof) with regard to any Employee Benefit Plan maintained, sponsored or contributed to by an ERISA Affiliate (if a like definition of Employee Benefit Plan were applicable to the ERISA Affiliate in the same manner as it applies to the CompanyPurchaser), including, without limitation, withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA, liabilities to the PBGC, or liabilities under Section 412 of the Code or Section 302(a) of ERISA.
(e) The Company Purchaser has complied in all respects with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA (such statutory provisions and predecessors thereof are referred to herein collectively as "COBRA").
(f) With respect to each Employee Benefit Plan and except as otherwise set forth on Schedule 5.18 6.18 attached hereto:
(i) each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a determination letter from the IRS to the effect that the Employee Benefit Plan is qualified under Section 401 of the Code and that any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of the Code, and nothing has occurred or, to the knowledge of the Company and ParentPurchaser, is expected to occur that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) all payments required by the Employee Benefit Plan or by law (including all contributions, insurance premiums, premiums due the PBGC or intercompany charges) with respect to all periods through the date hereof have been made;
(iii) there are no violations of or failures to comply with ERISA and the Code with respect to the filing of applicable reports, documents, and notices regarding the Employee Benefit Plan with DOL, the IRS, the PBGC or any other governmental authority, or any of the assets of the Employee Benefit Plan or any related trust;
(iv) no claims, lawsuit, arbitration or other action has been asserted or instituted or, to the knowledge of the Company and ParentPurchaser, threatened in writing against the Employee Benefit Plan, any trustee or fiduciaries thereof, the Company Purchaser or any ERISA Affiliate, any director, officer or employee thereof, or any of the assets of the Employee Benefit Plan or any related trust, except for routine claims for benefits;
(v) any bonding required with respect to the Employee Benefit Plan in accordance with the applicable provisions of ERISA has been obtained and is in full force and effect;
(vi) the Employee Benefit Plan complies in all respects with and has been maintained and operated in all respects in accordance with its respective terms and the terms and the provisions of applicable law, including, without limitation, ERISA and the Code (including rules and regulations thereunder);
(vii) no "prohibited transaction" (within the meaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to the Employee Benefit Plan (and the transactions contemplated by this Agreement will not constitute or directly or indirectly result in such a "prohibited transaction") which has subjected or, to the knowledge of Company and ParentPurchaser, could reasonably be expected to subject the CompanyPurchaser, any ERISA Affiliate or Purchaserthe Company, or any officer, director or employee of the CompanyPurchaser, any ERISA Affiliate Affiliate, or Purchaserthe Company, or the Employee Benefit Plan trustee, administrator or other fiduciary, to a tax or penalty on prohibited transactions imposed by either Section 502 of ERISA or Section 4975 of the Code or any other liability with respect thereto, which tax, penalty or liability could have a Material Adverse Effect;
(viii) to the knowledge of the Company and ParentPurchaser, the Employee Benefit Plan is not under audit or investigation by the IRS or the DOL or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax, interest or penalty.
(g) The Company Purchaser is not subject to any liens, excise or other taxes under ERISA, the Code or other applicable law relating to any Employee Benefit Plan.
(h) None of the Employee Benefit Plans is subject to Title IV of ERISA.
(i) In the case of any Employee Benefit Plan that is a Multiemployer Plan, the Company Purchaser has no withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA as a result of either a "complete withdrawal" (as defined in Section 4203 of ERISA) or a "partial withdrawal" (as defined in Section 4205 of ERISA) by the Company Purchaser from such Employee Benefit Plan occurring on or prior to the date hereof.
(j) The consummation of the Transactions will not give rise to any liability for any employee benefits, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Company Purchaser Employee.
(k) No amounts payable under any Employee Benefit Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code Code, as such Section of the Code is currently in effect.
(l) Except as set forth on Schedule 5.18, 6.18 attached hereto, no Employee Benefit Plan provides for any health benefits (other than under COBRA, the Federal Social Security Act or any Employee Benefit Plan qualified under Section 401(a) of the Code) to any Company Purchaser Employee who, at the time the health benefit is to be provided, is a former director or former employee of the Company Purchaser (or a beneficiary of any such person), nor, to the knowledge of the Company and ParentPurchaser, have any representations, agreements, covenants or commitments been made to provide such health benefits.
(m) Since June 30, 1999 and through the date hereof, except as set forth on Schedule 5.18 6.18 attached hereto or as required by applicable law or consistent with past practice, neither the Company Purchaser nor any ERISA Affiliate has, nor will it, (i) institute or agree to institute any new employee benefit plan or practice for any Company Purchaser Employee, (ii) make or agree to make any change in any Employee Benefit Plan, (iii) make or agree to make any increase in the compensation payable or to become payable by the Company Purchaser or any ERISA Affiliate to any Company Purchaser Employee, other than regularly scheduled increases, or (iv) except pursuant to this Agreement and except for contributions required to provide benefits pursuant to the provisions of the Employee Benefit Plans, pay or accrue or agree to pay or accrue any bonus, percentage of compensation, or other like benefit to, or for the credit of, any Company Purchaser Employee.
(n) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any Employee Benefit Plan which is attributable to any period or any portion of any period prior to the Closing shall, to the extent required by GAAP, be reflected as a liability on the Closing Balance SheetPurchaser Financial Statements, including, without limitation, any portion of the matching contribution required with respect to the Parent Purchaser Plan for the plan year ending after the Closing which is attributable to elective contributions made by Company Purchaser Employees in such plan prior to the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Investment Agreement (Simione Central Holdings Inc)
Employee Benefit Plans; Employees. Except as to any noncompliance with any of the following provisions that would not, individually, or in the aggregate, have a Material Adverse Effect:.
(a) Schedule 5.18 6.18 sets forth a list of each "employee benefit plan" (as defined by Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and any other bonus, profit sharing, pension, compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, scholarship, disability, sick leave, vacation, bonus, retention, or other plan, agreement, or arrangement (each such plan, agreement or arrangement is referred to herein as an "Employee Benefit Plan", and collectively, the "Employee Benefit Plans") Plan that is currently in effect for the benefit of (i) directors or employees of the CompanyPurchaser, (ii) former directors or employees of the CompanyPurchaser, or (iii) beneficiaries of anyone described in (i) or (ii) (collectively, "Company Purchaser Employees") or with respect to which the Company Purchaser or any "ERISA Affiliate" (hereby defined to include any trade or business, whether or not incorporated, other than the Company, which has employees who are treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) Affiliate has any obligation on behalf of any Company Purchaser Employee. Except as disclosed on Schedule 5.18 6.18 attached hereto, there are no other benefits to which any Company Purchaser Employee is entitled for which the Company Purchaser has any obligation.
(b) Parent Purchaser has delivered to PurchaserParent and the Company, with respect to each Employee Benefit Plan, true and complete copies of (i) the documents embodying the plan, including, without limitation, the current plan documents and documents creating any trust maintained pursuant thereto, all amendments, group annuity contracts, insurance contracts, the most recent summary plan description, if any, and employee handbooks, (ii) annual reports including but not limited to Forms 5500, 990 and 1041 for the last two (2) years for the plan and any related trust; (iii) any communication involving the plan or any related trust to or from the Internal Revenue Service ("IRS"), Department of Labor ("DOL"), Pension Benefit Guaranty Corporation ("PBGC") PBGC or any other governmental authority since January 1, 1998, but excluding any IRS determination letter submission; and (iv) the most recent determination letter received from the IRS pertaining to any Employee Benefit Plan intended to qualify under Sections 401(a) or 501(c)(9) of the Code.
(c) The Company Purchaser has no obligation to contribute to or provide benefits pursuant to, and has no other liability of any kind with respect to, (i) a "multiple employer welfare arrangement" (within the meaning of Section 3(40) of ERISA), or (ii) a "plan maintained by more than one employer" (within the meaning of Section 413(c) of the Code).
(d) Except as otherwise set forth on Schedule 5.18 6.18 attached hereto, the Company Purchaser is not liable for, and neither the Company nor Purchaser will be liable for, for any contribution, tax, lien, penalty, cost, interest, claim, loss, action, suit, damage, cost assessment or other similar type of liability or expense of any ERISA Affiliate (including predecessors thereof) with regard to any Employee Benefit Plan maintained, sponsored or contributed to by an ERISA Affiliate (if a like definition of Employee Benefit Plan were applicable to the ERISA Affiliate in the same manner as it applies to the CompanyPurchaser), including, without limitation, withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA, liabilities to the PBGC, or liabilities under Section 412 of the Code or Section 302(a) of ERISA.
(e) The Company Purchaser has complied in all respects with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA (such statutory provisions and predecessors thereof are referred to herein collectively as "COBRA").
(f) With respect to each Employee Benefit Plan and except as otherwise set forth on Schedule 5.18 6.18 attached hereto:
(i) each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a determination letter from the IRS to the effect that the Employee Benefit Plan is qualified under Section 401 of the Code and that any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of the Code, and nothing has occurred or, to the knowledge of the Company and ParentPurchaser, is expected to occur that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) all payments required by the Employee Benefit Plan or by law (including all contributions, insurance premiums, premiums due the PBGC or intercompany charges) with respect to all periods through the date hereof have been made;
(iii) there are no violations of or failures to comply with ERISA and the Code with respect to the filing of applicable reports, documents, and notices regarding the Employee Benefit Plan with DOL, the IRS, the PBGC or any other governmental authority, or any of the assets of the Employee Benefit Plan or any related trust;
(iv) no claims, lawsuit, arbitration or other action has been asserted or instituted or, to the knowledge of the Company and ParentPurchaser, threatened in writing against the Employee Benefit Plan, any trustee or fiduciaries thereof, the Company Purchaser or any ERISA Affiliate, any director, officer or employee thereof, or any of the assets of the Employee Benefit Plan or any related trust, except for routine claims for benefits;
(v) any bonding required with respect to the Employee Benefit Plan in accordance with the applicable provisions of ERISA has been obtained and is in full force and effect;
(vi) the Employee Benefit Plan complies in all respects with and has been maintained and operated in all respects in accordance with its respective terms and the terms and the provisions of applicable law, including, without limitation, ERISA and the Code (including rules and regulations thereunder);
(vii) no "prohibited transaction" (within the meaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to the Employee Benefit Plan (and the transactions contemplated by this Agreement will not constitute or directly or indirectly result in such a "prohibited transaction") which has subjected or, to the knowledge of Company and ParentPurchaser, could reasonably be expected to subject the CompanyPurchaser, any ERISA Affiliate or Purchaserthe Company, or any officer, director or employee of the CompanyPurchaser, any ERISA Affiliate Affiliate, or Purchaserthe Company, or the Employee Benefit Plan trustee, administrator or other fiduciary, to a tax or penalty on prohibited transactions imposed by either Section 502 of ERISA or Section 4975 of the Code or any other liability with respect thereto, which tax, penalty or liability could have a Material Adverse Effect;
(viii) to the knowledge of the Company and ParentPurchaser, the Employee Benefit Plan is not under audit or investigation by the IRS or the DOL or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax, interest or penalty.
(g) The Company Purchaser is not subject to any liens, excise or other taxes under ERISA, the Code or other applicable law relating to any Employee Benefit Plan.
(h) None of the Employee Benefit Plans is subject to Title IV of ERISA.
(i) In the case of any Employee Benefit Plan that is a Multiemployer Plan, the Company Purchaser has no withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA as a result of either a "complete withdrawal" (as defined in Section 4203 of ERISA) or a "partial withdrawal" (as defined in Section 4205 of ERISA) by the Company Purchaser from such Employee Benefit Plan occurring on or prior to the date hereof.
(j) The consummation of the Transactions will not give rise to any liability for any employee benefits, including, without limitation, liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Company Purchaser Employee.
(k) No amounts payable under any Employee Benefit Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code Code, as such Section of the Code is currently in effect.
(l) Except as set forth on Schedule 5.18, 6.18 attached hereto, no Employee Benefit Plan provides for any health benefits (other than under COBRA, the Federal Social Security Act or any Employee Benefit Plan qualified under Section 401(a) of the Code) to any Company Purchaser Employee who, at the time the health benefit is to be provided, is a former director or former employee of the Company Purchaser (or a beneficiary of any such person), nor, to the knowledge of the Company and ParentPurchaser, have any representations, agreements, covenants or commitments been made to provide such health benefits.
(m) Since June 30March 31, 1999 and through the date hereof, except as set forth on Schedule 5.18 6.18 attached hereto or as required by applicable law or consistent with past practice, neither the Company Purchaser nor any ERISA Affiliate has, nor will it, (i) institute or agree to institute any new employee benefit plan or practice for any Company Purchaser Employee, (ii) make or agree to make any change in any Employee Benefit Plan, (iii) make or agree to make any increase in the compensation payable or to become payable by the Company Purchaser or any ERISA Affiliate to any Company Purchaser Employee, other than regularly scheduled increases, or (iv) except pursuant to this Agreement and except for contributions required to provide benefits pursuant to the provisions of the Employee Benefit Plans, pay or accrue or agree to pay or accrue any bonus, percentage of compensation, or other like benefit to, or for the credit of, any Company Purchaser Employee.
(n) Any contribution, insurance premium, excise tax, interest charge or other liability or charge imposed or required with respect to any Employee Benefit Plan which is attributable to any period or any portion of any period prior to the Closing shall, to the extent required by GAAP, be reflected as a liability on the Closing Balance SheetPurchaser Financial Statements, including, without limitation, any portion of the matching contribution required with respect to the Parent Purchaser Plan for the plan year ending after the Closing which is attributable to elective contributions made by Company Purchaser Employees in such plan prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Mestek Inc)
