Common use of Employee Benefit Plans; Employment Matters Clause in Contracts

Employee Benefit Plans; Employment Matters. (a) Except as set forth in Exhibit 4.11(a) to the PhyCor Disclosure Schedule, to the knowledge of PhyCor, PhyCor has neither established nor maintained nor is obligated to make contributions to or under or otherwise participate in (i) any bonus or other type of incentive compensation plan, program or arrangement (whether or not set forth in a written document), (ii) any pension, profit-sharing, retirement or other plan, program or arrangement, or (iii) any other employee benefit plan, fund or program, including, but not limited to, those described in Section 3(3) of ERISA (individually, a "PhyCor Plan" and collectively, the "PhyCor Plans"), except for such plans that are not material. (b) Except as set forth in Exhibit 4.11(b) to the PhyCor Disclosure Schedule or as is expressly contemplated by this Plan of Merger, PhyCor is not a party to any oral or written (i) union, guild or collective bargaining agreement which agreement covers employees in the United States (nor is it aware of any union organizing activity currently being conducted in respect to any of its employees), (ii) agreement with any executive officer or other key employee the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction of the nature contemplated by this Plan of Merger and which provides for the payment of in excess of $25,000.00, or (iii) agreement or plan, including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of which will be accelerated, by the occurrence of any of the transactions contemplated by this Plan of Merger or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Plan of Merger. (c) Prior to the Effective Time, PhyCor will deliver or make available to MedPartners true, accurate and complete copies of the documents comprising each PhyCor Plan, each pension plan (as defined in Section 3(2) of ERISA) maintained by or for the benefit of employees of any entity which is affiliated with PhyCor through a management agreement, and any related trust agreements, annuity contracts or any other funding instruments ("Funding Arrangements") and the most recent Form 5500 annual report. (d) Except as set forth in Exhibit 4.11(d) of the PhyCor Disclosure Schedule or as would not have a material adverse effect on PhyCor: (i) Each PhyCor Plan intended to be qualified under Section 401(a) of the Code has a current favorable determination letter and no event has occurred which, to the knowledge of PhyCor, could cause any PhyCor Plan to become disqualified for purposes of Section 401(a) of the Code. Each PhyCor Plan has been operated in compliance with applicable law, including ERISA and the Code as applicable, and in accordance with its terms. There are no pending claims, lawsuits or actions relating to any PhyCor Plan (other than ordinary course claims for benefits) and, to the best knowledge of PhyCor, none are threatened that would result in a material adverse effect. (ii) No act or failure to act by PhyCor, any of PhyCor's officers, directors or employees, or, to the knowledge of PhyCor, any other "party in interest" (as defined in ERISA), has resulted in a "prohibited transaction" (as defined in ERISA) with respect to the PhyCor Plans that is not subject to a statutory or regulatory exception. No "reportable event" (as defined in ERISA, but excluding any event for which notice is waived under the ERISA regulations) has occurred with respect to any of the PhyCor Plans which is subject to Title IV of ERISA. PhyCor has not previously made, is not currently making, and is not obligated in any way to make, any contributions to any multi-employer plan within the meaning of the Multi-Employer Pension Plan Amendments Act of 1980. Neither PhyCor nor any other employer who has participated or is participating in any PhyCor Plan (a "Sponsor") has incurred any liability to the DOL, the PBGC or the Internal Revenue Service in connection with any PhyCor Plans, and no condition exists that presents a risk to PhyCor or any Sponsor of incurring any liability to the DOL, the PBGC or Internal Revenue Service. A-19 20 (iii) Full payment has been made of all amounts which are required under the terms of each PhyCor Plan or Funding Arrangement to have been paid as of the due date for such payments that have occurred on or before the Effective Time, and no accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code) has been incurred with respect to such PhyCor Plan, whether or not waived. 4.12

Employee Benefit Plans; Employment Matters. (a) Except as set forth in Exhibit 4.11(a3.11(a) to the PhyCor MedPartners Disclosure Schedule, to the knowledge of PhyCorMedPartners, PhyCor MedPartners has neither established nor maintained nor is obligated to make contributions to or under or otherwise participate in (i) any bonus or other type of incentive compensation plan, program or arrangement (whether or not set forth in a written document), (ii) any pension, profit-sharing, retirement or other plan, program or arrangement, or (iii) any other employee benefit plan, fund or program, including, but not limited to, those described in Section 3(3) of ERISA (individually, a "PhyCor MedPartners Plan" and collectively, the "PhyCor MedPartners Plans"), except for such plans that are not material. (b) Except as set forth in Exhibit 4.11(b3.11(b) to the PhyCor MedPartners Disclosure Schedule or as is expressly contemplated by this Plan of Merger, PhyCor MedPartners is not a party to any oral or written (i) union, guild or collective bargaining agreement which agreement covers employees in the United States (nor is it aware of any union organizing activity currently being conducted in respect to any of its employees), (ii) agreement with any executive officer or other key employee the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction of the nature contemplated by this Plan of Merger and which provides for the payment of in excess of $25,000.00, or (iii) agreement or plan, including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of which will be accelerated, by the occurrence of any of the transactions contemplated by this Plan of Merger or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Plan of Merger. (c) Prior to the Effective Time, PhyCor MedPartners will deliver or make available to MedPartners PhyCor true, accurate and complete copies of the documents comprising each PhyCor MedPartners Plan, each pension plan (as defined in Section 3(2) of ERISA) maintained by or for the benefit of employees of any entity which is affiliated with PhyCor MedPartners through a management agreement, and any related trust agreements, annuity contracts or any other funding instruments ("Funding Arrangements") and the most recent Form 5500 annual report. (d) Except as set forth in Exhibit 4.11(d3.11(d) of the PhyCor MedPartners Disclosure Schedule or as would not have a material adverse effect on PhyCorMedPartners: (i) Each PhyCor MedPartners Plan intended to be qualified under Section 401(a) of the Code has a current favorable determination letter and no event has occurred which, to the knowledge of PhyCorMedPartners, could cause any PhyCor MedPartners Plan to become disqualified for purposes of Section 401(a) of the Code. Each PhyCor MedPartners Plan has been operated in compliance with applicable law, including ERISA and the Code as applicable, and in accordance with its terms. There are no pending claims, lawsuits or actions relating to any PhyCor MedPartners Plan (other than ordinary course claims for benefits) and, to the best knowledge of PhyCorMedPartners, none are threatened that would result in a material adverse effect. A-13 14 (ii) No act or failure to act by PhyCorMedPartners, any of PhyCor's MedPartners' officers, directors or employees, or, to the knowledge of PhyCorMedPartners, any other "party in interest" (as defined in ERISA), has resulted in a "prohibited transaction" (as defined in ERISA) with respect to the PhyCor MedPartners Plans that is not subject to a statutory or regulatory exception. No "reportable event" (as defined in ERISA, but excluding any event for which notice is waived under the ERISA regulations) has occurred with respect to any of the PhyCor MedPartners Plans which is subject to Title IV of ERISA. PhyCor MedPartners has not previously made, is not currently making, and is not obligated in any way to make, any contributions to any multi-employer plan within the meaning of the Multi-Employer Pension Plan Amendments Act of 1980. Neither PhyCor MedPartners nor any other employer who has participated or is participating in any PhyCor MedPartners Plan (a "Sponsor") has incurred any liability to the Department of Labor (the "DOL"), the PBGC Pension Benefit Guaranty Corporation (the "PBGC") or the Internal Revenue Service in connection with any PhyCor MedPartners Plans, and no condition exists that presents a risk to PhyCor MedPartners or any Sponsor of incurring any liability to the DOL, the PBGC or Internal Revenue Service. A-19 20 (iii) Full payment has been made of all amounts which are required under the terms of each PhyCor MedPartners Plan or Funding Arrangement to have been paid as of the due date for such payments that have occurred on or before the Effective Time, and no accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code) has been incurred with respect to such PhyCor MedPartners Plan, whether or not waived. 4.123.12