Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan. (i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect. (c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect. (d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect. (e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 3 contracts
Samples: Merger Agreement (Lilly Industries Inc), Merger Agreement (Lilly Industries Inc), Merger Agreement (Guardsman Products Inc)
Employee Benefit Plans; ERISA. (a) Section 3.12(a) of the Company Disclosure Schedule contains a true and complete list of each Company Benefit Plan. With respect to such Company Benefit Plans, the Company has made available, or within 30 days after the execution hereof will make available, to Parent a true and correct copy of (A) such Company Benefit Plan, (B) the most recent annual report (Form 5500) filed with the IRS, (C) each trust agreement relating to the Company Benefit Plan, (D) the most recent summary plan description for each Company Benefit Plan for which a summary plan description is required, (E) the most recent actuarial report or valuation relating to a Company Benefit Plan subject to Title IV of ERISA and (F) the most recent determination letter issued by the IRS with respect to any Company Benefit Plan qualified under Section 401(a) of the Code.
(b) Except as previously disclosed would not reasonably be expected to Parent and have, either individually or in the Purchaseraggregate, a Material Adverse Effect on the Company, (i) each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"))Company Benefit Plans has been established and administered in accordance with its terms, and all in compliance with the applicable provisions of ERISA, the Code and other employee benefitapplicable laws, bonus, incentive, stock option rules and regulations; (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insuranceii) and fringe benefit plans (whether or not subject each Company Benefit Plan which is intended to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" qualified within the meaning of Code Section 4001 401(a) has received a favorable determination letter as to its qualification, and nothing has occurred, whether by action or failure to act, that would reasonably be expected to cause the loss of ERISA such qualification, and (an "ERISA Affiliate")iii) no actions, suits or claims (other than routine claims for benefits in the benefit ordinary course) are pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against any Company Benefit Plan.
(c) Except as set forth in Section 3.12(c) of the Company Disclosure Schedule, no Company Benefit Plan exists that could result in the payment to any present or former employee, director or independent consultant of the Company or any of its Subsidiaries of any employee money or other property or accelerate or provide any other rights or benefits to any present or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions Subsidiaries as a result of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined transaction contemplated by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effectthis Agreement. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits Except as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status Section 3.12(c) of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution Disclosure Schedule, there is no contract, plan or payment to any Plan which has resulted arrangement (written or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(eotherwise) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle covering any current or former employee or officer director of the Company or any ERISA Affiliate of its Subsidiaries that, individually or collectively, could give rise to severance paythe payment of any amount that would not be deductible pursuant to the terms of Sections 280G or 162(m) of the Code. In connection with the transaction contemplated by this Agreement or otherwise, unemployment compensation no current or former employee or director of the Company or its Subsidiaries has the right to compel the Company or any of its Subsidiaries to fund (by reason of, or pursuant to, a grantor trust or any other paymentfunding mechanism) any benefit provided, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any to be provided, to such employee or officerdirector.
(d) All Options were granted with an exercise price per share of Company Common Stock that was equal to or in excess of the fair market value per share of Company Common Stock as of the date of grant of such Option to the extent required by applicable law, accounting rules or Section 409A of the Code, and each of the Company Benefit Plans subject to Code Section 409A has been administered in all material respects in good faith compliance with the applicable requirements of Code Section 409A, IRS Notice 2005-1 or the proposed regulations issued thereunder.
(e) Prior to the execution of this Agreement, each of Wxxxxxx X. Xxxx, Pxxxx X. Xxxxxxx, Sxxxxxx X. Xxxxx and Cxxxx X. Xxxxxxxx has entered into a written amendment (or otherwise effective modification) to his or her Retention Agreement or Employment Agreement, as applicable, in the form previously provided to and previously found acceptable by Parent.
Appears in 3 contracts
Samples: Merger Agreement (Td Banknorth Inc.), Merger Agreement (Toronto Dominion Bank), Merger Agreement (Toronto Dominion Bank)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 3.9 of the Purchaser, (i) each "Company's Disclosure Schedule sets forth a list of all material employee benefit plan" plans, arrangements, contracts or agreements (as defined including employment agreements and severance agreements) of any type (including but not limited to plans described in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or Company, any of its subsidiaries Subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA incorporated (an "ERISA Affiliate"), for the benefit of any employee or former employee of which together with the Company or any of its ERISA Affiliates (the would be under "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualifiedcommon control" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(csection 4001(a)(14) of ERISA (for which the 30-day notice requirement to the Pension "Benefit Guaranty Corporation (Plans"PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither Neither the Company nor any ERISA Affiliate has any formal plan or commitment, whether legally binding or not, to create any additional Benefit Plan or modify or change any existing Benefit Plan that would affect any employee or terminated employee of the Company or any Subsidiary.
(b) With respect to each Benefit Plan: (i) if intended to qualify under section 401(a), 401(k) or 403(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Code"), the United States Internal Revenue Service (the "Service") has issued a favorable letter of determination on such qualified status and on the exempt status under section 501(a) of the Code and since such letter of determination no event has occurred that would disqualify such plan; (ii) such plan has been administered in all material respects in accordance with its terms and applicable law; (iii) no breaches of fiduciary duty have occurred which might reasonably be expected to give rise to material liability on the part of the Company; (iv) no disputes are pending, or, to the knowledge of the Company, threatened that might reasonably be expected to give rise to material liability on the part of the Company; (v) no prohibited transaction (within the meaning of Section 406 of ERISA) has occurred that might reasonably be expected to give rise to material liability on the part of the Company; (vi) all contributions and premiums due as of the date hereof (taking into account any extensions for such contributions and premiums) have been made in full; and (vii) all reports required to be filed with respect to such Benefit Plan have been properly, accurately and timely filed.
(c) Neither the Company nor any ERISA Affiliate (a) has incurred an accumulated funding deficiency, as defined in the Code and ERISA or (b) has any material liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise with respect to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Benefit Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither With respect to each Benefit Plan that is a "welfare plan" (as defined in section 3(l) of ERISA), no such plan provides medical or death benefits with respect to current or former employees of the Company nor or any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting its Subsidiaries beyond their termination of a bond or employment, other security under ERISA or the Code which would have a Company Material Adverse Effectthan on an employee-pay-all basis.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Lettercontemplated by Section 2.5, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate individual to severance pay, unemployment compensation pay or any other payment, or (ii) accelerate the time of payment or vesting vesting, or increase the amount amount, of compensation or benefits due to any individual (other than as disclosed in writing), (ii) constitute or result in a prohibited transaction under section 4975 of the Code or section 406 or 407 of ERISA or (iii) subject the Company, any of its Subsidiaries, any ERISA Affiliate, any of the Benefit Plans, any related trust, any trustee or administrator of any thereof, or any party dealing with the Benefit Plans or any such employee trust to either a civil penalty assessed pursuant to section 409 or officer502(i) of ERISA or a tax imposed pursuant to section 4976 or 4980B of the Code.
(f) Neither the Company nor any ERISA Affiliate has at any time within the preceding six years been obligated to contribute to any Benefit Plan that is a "multiemployer plan," as such term is defined in section 3(37) of ERISA.
(g) With respect to each Benefit Plan, the Company has made available to Parent or its representatives accurate and complete copies of all plan texts, summary plan descriptions, summary of material modifications, trust agreements and other related agreements including all amendments to the foregoing; the most recent annual report; the most recent annual and periodic accounting of plan assets; the most recent determination letter received from the Service; and the most recent actuarial valuation, to the extent any of the foregoing may be applicable to a particular Benefit Plan.
Appears in 3 contracts
Samples: Merger Agreement (American Studios Inc), Merger Agreement (American Studios Inc), Merger Agreement (Pca International Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each There are no "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer planplans" (within the meaning of Section 3(3) of the ERISA) nor has any other employee benefit or fringe benefit arrangements, practices, contracts, policies or programs of every type other than programs merely involving the Company regular payment of wages, commissions, or any ERISA Affiliate ever bonuses established, maintained or contributed to by the Company, whether written or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), unwritten and whether or not waived funded. The plans listed in the Disclosures hereto are hereinafter referred to as the "Employee Benefit Plans."
(b) All current and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments prior material documents, including all amendments thereto, with respect to the PBGC, which payments each Employee Benefit Plan have been made when due, available to Parent and no events have occurred which are reasonably likely to give rise to any liability of the Company Acquisition Corp. or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effecttheir advisors.
(c) With respect to each Plan that is subject to Title IV To the knowledge of the Company, all Employee Benefit Plans are in material compliance with the applicable requirements of ERISA, the Internal Revenue Code of 1986, as amended (ithe "Code") the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereofany other applicable state, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually federal or in the aggregate, have a Company Material Adverse Effectforeign law.
(d) Neither There are no pending claims or lawsuits which have been asserted or instituted against any Employee Benefit Plan, the assets of any of the trusts or funds under the Employee Benefit Plans, the plan sponsor or the plan administrator of any of the Employee Benefit Plans or against any fiduciary of an Employee Benefit Plan with respect to the operation of such plan, nor does the Company nor have any ERISA Affiliate has failed knowledge of any incident, transaction, occurrence or circumstance which might reasonably be expected to make form the basis of any contribution such claim or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effectlawsuit.
(e) Except as provided for in this Agreement There is no pending or, to the knowledge of the Company, contemplated investigation, or as disclosed in pending or possible enforcement action by the Disclosure LetterPension Benefit Guaranty Corporation, the consummation Department of Labor, the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation Internal Revenue Service or any other paymentgovernment agency with respect to any Employee Benefit Plan and the Company has no knowledge of any incident, transaction, occurrence or circumstance which might reasonably be expected to trigger such an investigation or enforcement action.
(iif) accelerate No actual or, to the time knowledge of payment the Company, contingent liability exists with respect to the funding of any Employee Benefit Plan or vesting for any other expense or increase obligation of any Employee Benefit Plan, except as disclosed on the amount financial statements of compensation due the Company, and no contingent liability exists under ERISA with respect to any "multi-employer plan," as defined in Section 3(37) or Section 4001(a)(3) of ERISA.
(g) No events have occurred or are expected to occur with respect to any Employee Benefit Plan that would cause a material change in the costs of providing benefits under such employee Employee Benefit Plan or officerwould cause a material change in the cost of providing for other liabilities of such Employee Benefit Plan.
Appears in 3 contracts
Samples: Merger Agreement (Towerstream Corp), Merger Agreement (Fairview Energy Corporation, Inc.), Merger Agreement (Handheld Entertainment, Inc.)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed With respect to Parent the ADS Employees, Section 3.11(a) of the Company Disclosure Schedule sets forth a true, correct and the Purchaser, (i) each "complete list of all employee benefit plan" (plans, programs, agreements or arrangements, including pension, retirement, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, vacation, bonus or other incentive plans, all medical, vision, dental or other health plans, all life insurance plans, and all other employee benefit plans or fringe benefit plans, including “employee benefit plans” as that term is defined in Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA, as amended ("ERISA"))in each case, and all other employee benefitwhether oral or written, bonusfunded or unfunded, incentiveor insured or self-insured, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries any Company Subsidiary, or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of to which the Company or any of its ERISA Affiliates Company Subsidiary contributed or is obligated to contribute thereunder, or with respect to which the Company or any Company Subsidiary has or may have any Liability, in each case, for or to any current or former ADS Employees (collectively, the "“Company Benefit Plans"”).
(b) is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures All Company Benefit Plans that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans are intended to be "qualified" within the meaning of subject to Code Section 401(a) of the and any trust agreement that is intended to be tax exempt under Code has Section 501(a) have been determined by the Internal Revenue Service to be so qualifiedqualified under Code Section 401(a) and exempt from taxation under Code Section 501(a), (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement and, to the Pension Benefit Guaranty Corporation ("PBGC") knowledge of the Company, nothing has occurred that would adversely affect the qualification of any such plan. Except as has not been waived), has occurred with respect had and would not reasonably be expected to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person whichhave, individually or in the aggregate, would have a Company Material Adverse Effect: (i) each Company Benefit Plan and any related trust subject to ERISA complies with and has been administered in substantial compliance with, (A) the provisions of ERISA, (B) all provisions of the Code, (C) all other applicable laws and (D) its terms and the terms of any collective bargaining or collective labor agreements; (ii) neither the Company nor any Company Subsidiary has received any written notice from any Governmental Entity questioning or challenging such compliance; (iii) there are no unresolved claims or disputes under the terms of, or in connection with, the Company Benefit Plans other than claims for benefits which are payable in the ordinary course; (iv) there are has not been any “prohibited transaction” (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to any Company Benefit Plan; (v) no pendinglitigation has been commenced with respect to any Company Benefit Plan and, or to the knowledge of the Company's knowledge threatened, claims no such litigation is threatened (other than routine claims for benefitsbenefits in the normal course); (vi) bythere are no governmental audits or investigations pending or, on behalf of or against, any to the knowledge of the Plans or Company, threatened in connection with any trusts related thereto which wouldCompany Benefit Plan; and (vii) to the knowledge of the Company, individually or there are not any facts that could give rise to any liability in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" event of any governmental audit or investigation.
(within the meaning c) Except as set forth in Section 3.11(c) of ERISA) nor has the Company or Disclosure Schedule, neither the Company nor any ERISA Affiliate ever contributed of the Company (as defined below) (i) sponsors or been required contributes to contribute a Company Benefit Plan that is a “defined benefit plan” (as defined in ERISA Section 3(35)); (ii) has an “obligation to contribute” (as defined in ERISA Section 4212) to a Company Benefit Plan that is a “multiemployer plan” (as defined in ERISA Sections 4001(a)(3) and 3(37)(A)); (iii) has any Liability under Title IV of ERISA with respect to a Company Benefit Plan, either directly or through any ERISA Affiliate; and (iv) sponsors, maintains or contributes to any multiemployer plan, program or arrangement that provides for post-retirement or other post-employment welfare benefits (other than health care continuation coverage as required by applicable law).
(id) With respect of each of the Company Benefit Plans which is subject to Title IV of ERISA, the present value of accrued benefits under such plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such plan’s actuary with respect to such plan, did not, as of its latest valuation date, exceed the then current value of the assets of such plan allocable to such accrued benefits. No Company Benefit Plan nor any trust established under a Company Benefit Plan has incurred an "any “accumulated fund funding deficiency" ” (as defined in Section 302 of ERISA or and Section 412 of the Code), whether or not waived and (ii) neither waived, as of the Company nor any ERISA Affiliate has incurred any liability under Title IV last day of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability most recent fiscal year of each of the Company or an ERISA Affiliate under Title IV Benefit Plans ended prior to the date of ERISA or which could this Agreement.
(e) Except as has not had and would not reasonably be anticipated expected to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which wouldhave, individually or in the aggregate, have a Company Material Adverse Effect, all reports, returns and similar documents with respect to all Company Benefit Plans required to be filed by the Company or any Company Subsidiary with any Governmental Entity or distributed to any Company Benefit Plan participant have been duly and timely filed or distributed.
(cf) With respect to Section 3.11(f) of the Company Disclosure Schedule discloses whether each Company Benefit Plan that is subject to Title IV of ERISA, an employee welfare benefit plan is (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereofunfunded or self-insured, (ii) the assets and liabilities funded through a “welfare benefit fund”, as such term is defined in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and Code Section 419(e) or other funding mechanism or (iii) since the date of such valuation report there insured. Except as has been no adverse change in the funded status of any such Plan which wouldnot had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect.
, each such employee welfare benefit plan may be amended or terminated (dincluding with respect to benefits provided to retirees and other former employees) without liability (other than benefits then payable under such plan without regard to such amendment or termination) to the Company or any Company Subsidiary at any time. The Company and each Company Subsidiary complies in all material respects with the applicable requirements of Section 4980B(f) of the Code or any similar state statute with respect to each Company Benefit Plan that is a group health plan within the meaning of Section 5000(b)(1) of the Code or such state statute. Neither the Company nor any ERISA Affiliate Company Subsidiary has failed to make any contribution material obligations for retiree health or payment to life insurance benefits under any Company Benefit Plan which has resulted or could result in (other than for continuation coverage under Section 4980B(f) of the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse EffectCode).
(eg) Except as provided for in this Agreement may be required by applicable law, or as disclosed contemplated under this Agreement, neither the Company nor any Company Subsidiary has any plan or commitment to create any additional Company Benefit Plans, or to amend or modify any existing Company Benefit Plan in such a manner as to materially increase the Disclosure Letter, cost of such Company Benefit Plan to the consummation Company or any Company Subsidiary.
(h) Section 3.11(h) of the transactions contemplated by this Agreement will not Company Disclosure Schedule discloses: (i) entitle each material payment (including any bonus, severance, unemployment compensation, deferred compensation, forgiveness of indebtedness or golden parachute payment) becoming due to any current or former employee or officer of the ADS Employee under any Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or Benefit Plan; (ii) accelerate any increase in any material respect any benefit otherwise payable under any Company Benefit Plan; (iii) any acceleration in any material respect of the time of payment or vesting or increase the amount of compensation due any such employee benefits under any Company Benefit Plan; or officer(iv) any material obligation to fund any trust or other arrangement with respect to compensation or benefits under a Company Benefit Plan in each case caused or triggered by the execution and delivery of this Agreement or the consummation of the Offer, the Merger or the other Transactions. No payment or benefit which has been, will or may be made by the Company or any Company Subsidiary with respect to any current or former ADS Employee located in the United States in connection with the execution and delivery of this Agreement or the consummation of the Transactions would be characterized as an “excess parachute payment” with the meaning of Section 280G(b)(1) of the Code or fail to be deductible under Section 162(m) of the Code.
(i) True, correct and complete copies have been delivered or made available to the Purchaser by the Company of all Company Benefit Plans (including all amendments and attachments thereto); written summaries of any Company Benefit Plan not in writing, all related trust documents; all insurance contracts or other funding arrangements to the degree applicable; the two (2) most recent annual information filings (Form 5500) and annual financial reports for those Company Benefit Plans (where required); the most recent determination letter from the Internal Revenue Service (where required); and the most recent summary plan descriptions for the Company Benefit Plans and in respect of defined Company Benefit Plans, the most recent actuarial valuation and any subsequent valuation or funding advice (including draft valuations).
(j) None of the Company or any Company Subsidiary has entered into any contract, agreement, arrangement or understanding with any officer or director of the Company or any Company Subsidiary in connection with or in contemplation of the Transactions.
(k) None of the Company nor any Company Subsidiary has any non-U.S. employees.
Appears in 3 contracts
Samples: Merger Agreement (New 360), Merger Agreement (Point 360), Merger Agreement (DG FastChannel, Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the PurchaserSchedule 3.8 hereto sets forth a list of all employee benefit plans, (i) each "employee benefit plan" (as defined including but not limited to plans described in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefitor severance, stock, bonus, incentiveoption, stock option (profit sharing or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit of control plans (whether or not subject to ERISA) maintained or sponsored by the Company or Company, any of its subsidiaries Subsidiaries or any trade or business, whether or not incorporatedincorporated (an "ERISA Affiliate"), that which together with the Company would be deemed a "single employer" within the meaning of Section 4001 section 4001(b)(15) of ERISA ("Benefit Plans") and all material employment and severance agreements with employees of the Company ("Employee Agreements"). True and complete copies of all Employee Agreements have been delivered to Parent by the Company.
(b) With respect to each Benefit Plan, the Company has delivered to Parent a current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument; (ii) the most recent determination letter, if applicable; (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Benefit Plan; and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney's response to an auditor's request for information.
(c) With respect to each Benefit Plan, except as otherwise disclosed to Parent: (i) if intended to qualify under section 401(a) or 401(k) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "ERISA AffiliateCode"), such plan has received a determination letter from the Internal Revenue Service stating that it so qualifies and that its trust is exempt from taxation under section 501(a) of the Code; (ii) such plan has been administered in all material respects in accordance with its terms and applicable law; (iii) no breaches of fiduciary duty have occurred which might reasonably be expected to give rise to material liability on the part of the Company; (iv) no disputes are pending, or, to the knowledge of the Company, threatened that might reasonably be expected to give rise to material liability on the part of the Company; (v) no prohibited transaction (within the meaning of Section 406 of ERISA) or "reportable event" (as defined in Section 4043 of ERISA) has occurred that might reasonably be expected to give rise to material liability on the part of the Company; (vi) all contributions required to be made to such plan as of the date hereof (taking into account any extensions for the benefit making of such contributions) have been made in full; and (vii) for each Benefit Plan with respect to which a Form 5500 has been filed, no material change has occurred with respect to the matters covered by the most recent Form since the date thereof.
(d) Except as disclosed on Schedule 3.8, no Benefit Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any employee Benefit Plan a plan described in section 4063(a) of ERISA.
(e) Except as disclosed on Schedule 3.8, no liability under Title IV of ERISA has been incurred by the Company or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to the Company or any ERISA Affiliate of incurring a material liability under such Title. No Benefit Plan has incurred an accumulated funding deficiency, as defined in section 302 of ERISA or section 312 of the Code, whether or not waived.
(f) With respect to each Benefit Plan that is a "welfare plan" (as defined in section 3(1) of ERISA), no such plan provides medical or death benefits with respect to current or former employees of the Company or any of its Subsidiaries beyond their termination of employment (other than to the extent required by applicable law).
(g) Except as set forth in Section 2.5 or as disclosed on Schedule 3.8, no Benefit Plan exists that would result in the payment to any present or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making Subsidiaries of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually any money or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect other property or accelerate or provide any other rights or benefits to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity present or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability former employee of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to its Subsidiaries as a result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will Agreement, whether or not (i) entitle any current or former employee or officer such payment would constitute a parachute payment within the meaning of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.Code section 280G.
Appears in 3 contracts
Samples: Merger Agreement (Aydin Corp), Merger Agreement (Aydin Corp), Merger Agreement (L 3 Communications Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and set forth in Section 5.20 of the PurchaserDis- closure Statement, (i) each there are no "employee pension benefit planplans" (as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), covering employees employed in the United States, maintained or contrib- uted to by Shared Technologies or any of its subsidiaries, or to which Shared Technologies or any of its subsidiaries contributes or is obligated to make payments thereunder or otherwise may have any liability ("Pension Benefits Plans").
(b) Shared Technologies has furnished Xxxxxxxxx with a true and complete schedule of all "welfare benefit plans" (as defined in Section 3(1) of ERISA) covering employees employed in the United States, maintained or contributed to by Shared Technologies or any of its subsidiaries ("Welfare Plans"), and all other employee benefitmultiemployer plans as defined in Section 3(37) of ERISA cover- ing employees employed in the United States to which Shared Technologies or any of its subsidiaries is required to make contributions or otherwise may have any liability, and, to the extent covering employees employed in the United States, all stock bonus, stock option, restricted stock, stock appreciation right, stock purchase, bonus, incentive, stock option (or other equity-based)deferred compensation, severance, change in control, welfare (including post-retirement medical severance and life insurance) and fringe benefit vacation plans (whether or not subject to ERISA) maintained or sponsored contributed to by the Company Shared Technologies or a subsidiary.
(c) Shared Technologies and each of its subsidiaries or any trade or businesssubsidiar- ies, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee and each of the Company or any of its ERISA Affiliates (the "Pension Benefit Plans and Welfare Plans") is, and has been operated in accordance with its terms and are in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of ERISA (the "Code, ") and other applicable laws except for failures that where the failure to comply would not, individually or in the aggregate, have a Company Shared Technologies Material Adverse Effect.
(d) All contributions to, (ii) each and payments from, the Pension Benefit Plans which are required to have been made in accordance with the Pension Benefit Plans and, when applicable, Section 302 of the Plans intended to be "qualified" within the meaning of ERISA or Section 401(a) 412 of the Code has have been determined by timely made except where the Internal Revenue Service failure to be so qualified, (iii) no "reportable event," as make such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents contributions or payments on a risk of liability to any governmental entity or other person which, individually or in the aggregate, timely basis would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which wouldnot, individually or in the aggregate, have a Company Shared Technologies Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been All contributions required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined have been made in accordance with Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise Code to any liability employee pension benefit plan (as defined in Section 3(2) of the Company or ERISA) maintained by an ERISA Affiliate under Title IV of ERISA Shared Technologies or which could reasonably be anticipated any of its subsidiaries have been timely made except where the failure to result in any claims being made against Purchaser by the PBGC, in any make such case, which presents contributions on a risk of liability which would, timely basis would not individually or in the aggregate, aggregate have a Company Shared Technologies Material Adverse Effect.
. For purposes of this Agreement, "ERISA Affiliate" shall mean any person (as defined in Section 3(9) of ERISA) that is a member of any group of persons described in Section 414(b), (c) With respect to each Plan that is subject to Title IV of ERISA), (im) the Company has provided to Parent and the Purchaser copies or (o) of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect Code of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually Shared Technologies or in the aggregate, have a Company Material Adverse Effectsubsidiary is a member.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 3 contracts
Samples: Merger Agreement (Fairchild Industries Inc /De/), Merger Agreement (Rhi Holdings Inc), Merger Agreement (Fairchild Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) Such party's Disclosure Schedule sets forth a true and complete list of each "material employee or director benefit plan, arrangement or agreement (including, without limitation, stock purchase, stock option, severance, employment, change in control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and all other employee benefit planplans, agreements, programs, policies or other arrangements, whether or not subject to ERISA) that is maintained, or contributed to, as of the date of this Agreement (the "Benefit Plans") by such party or any of its Subsidiaries or by any trade or business, whether or not incorporated (an "ERISA Affiliate"), all of which together with such party would be deemed a "single employer" (as defined in within the meaning of Section 3(3) 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")).
(ii) Such party has made available to the other party true and complete copies of each of such party's Benefit Plans and certain related documents, including, but not limited to, (A) the actuarial report for such party's Benefit Plans (if applicable) for each of the last two years, and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare B) the most recent determination letter from the IRS (including post-retirement medical and life insuranceas defined herein) and fringe benefit plans (whether or if applicable) for such plan.
(iii) Except as would not subject reasonably be expected to ERISAhave a Material Adverse Effect (A) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning each of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and such party's Benefit Plans has been operated and administered in all material respects in accordance with its their terms and in compliance (including the making of governmental filings) with all applicable Lawslaws, including including, but not limited to, ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (iiB) each of the such party's Benefit Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by received a favorable determination letter with respect to such qualified status, or such Benefit Plans shall be submitted for such determination in a timely fashion and there are no existing circumstances or events that have occurred that could reasonably be expected to adversely affect the Internal Revenue Service to be so qualifiedqualified status of any such plan, (iiiC) with respect to each Benefit Plan of such party which is subject to Title IV of ERISA, the present value of accrued benefits under such Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Plan's actuary with respect to such Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Plan allocable to such secured benefits, (D) no Benefit Plan of such party provides benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of such party or its Subsidiaries beyond their retirement or other termination of service, other than (1) coverage mandated by applicable law, (2) death benefits or retirement benefits under any "reportable event,employee pension plan" (as such term is defined in Section 4043(c3(2) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waivedERISA), has occurred with respect to any Plan that (3) deferred compensation benefits accrued as liabilities on the books of such party or its Subsidiaries or (4) benefits the full cost of which is subject to borne by the current or former employee or director (or his beneficiary), (E) no material liability under Title IV of ERISA which presents has been incurred by such party, its Subsidiaries or any ERISA Affiliate that has not been satisfied in full, and no condition exists that could reasonably be expected to present a material risk to such party, its Subsidiaries or any ERISA Affiliate of such party incurring a material liability to any governmental entity thereunder (other than the payment of premiums and funding obligations in the ordinary course of business), (F) no Benefit Plan is a "multiemployer pension plan" (as such term is defined in Section 3(37) of ERISA), (G) all contributions or other person whichamounts payable by such party or its Subsidiaries as of the Effective Time with respect to each Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with GAAP and Section 412 of the Code, individually (H) neither such party nor its Subsidiaries has engaged in a transaction with respect to such party's Benefit Plans in connection with which such party or in its Subsidiaries reasonably could be subject to either a material civil penalty accessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the aggregate, would have a Company Material Adverse EffectCode, and (ivI) to the best knowledge of such party, there are no pending, threatened or to the Company's knowledge threatened, anticipated claims (other than routine claims for benefits) by, on behalf of or against, against any of the Benefit Plans of such party or any trusts related thereto which wouldthereto.
(iv) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in any material payment (including, individually or in the aggregatewithout limitation, have a Company Material Adverse Effect. No Plan is a severance, unemployment compensation, "multiemployer planexcess parachute payment" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 280G of the Code), whether forgiveness of indebtedness or not waived and (iiotherwise) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise becoming due to any liability director or any employee of the Company such party or an ERISA Affiliate any of its Subsidiaries under Title IV any Benefit Plan of ERISA such party or which could reasonably be anticipated to otherwise, (B) materially increase any benefits otherwise payable under any Benefit Plan of such party or (C) result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies acceleration of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect time of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status payment or vesting of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment benefits to any Plan which has resulted or could result in material extent. Notwithstanding the imposition foregoing, neither the execution of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, nor the consummation of the transactions contemplated by this Agreement hereby will not (i) entitle any current constitute or former employee or officer be deemed a "Change of Control" within the meaning of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate Firstar Supplemental Retirement Plan for Key Executives and the time of payment or vesting or increase the amount of compensation due any such employee or officerFirstar Corporation Pension Plan.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Star Banc Corp /Oh/), Agreement and Plan of Reorganization (Firstar Corp /Wi/), Agreement and Plan of Reorganization (Firstar Corp /Wi/)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and set forth in Section 6.20 of the PurchaserDis- closure Statement, (i) each there are no "employee pension benefit planplans" (as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), covering employees employed in the United States, maintained or contrib- uted to by Xxxxxxxxx or any of its subsidiaries, or to which Xxxxxxxxx or any of its subsidiaries contributes or is obli- gated to make payments thereunder or otherwise may have any liability ("Pension Benefits Plans").
(b) Xxxxxxxxx has furnished Shared Technologies with a true and complete schedule of all "welfare benefit plans" (as defined in Section 3(1) of ERISA) covering employees employed in the United States, maintained or contributed to by Xxxxxxxxx or any of its subsidiaries ("Welfare Plans"), and all other employee benefitmultiemployer plans as defined in Section 3(37) of ERISA covering employees employed in the United States to which Xxxxxxxxx or any of its subsidiaries is required to make contributions or otherwise may have any liability, and, to the extent covering employees employed in the United States, all stock bonus, stock option, restricted stock, stock appreciation right, stock purchase, bonus, incentive, stock option (or other equity-based)deferred compensation, severance, change in control, welfare (including post-retirement medical severance and life insurance) and fringe benefit vacation plans (whether or not subject to ERISA) maintained or sponsored contributed to by the Company Xxxxxxxxx or a subsidiary.
(c) Xxxxxxxxx and each of its subsidiaries or any trade or businesssubsidiaries, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee and each of the Company or any of its ERISA Affiliates (the "Pension Benefit Plans and Welfare Plans") is, and has been operated in accordance with its terms and are in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of ERISA and other applicable laws except where the Code, except for failures that failure to comply would not, individually or in the aggregate, have a Company Xxxxxxxxx Material Adverse Effect.
(d) All contributions to, (ii) each and payments from, the Pension Benefit Plans which are required to have been made in accordance with the Pension Benefit Plans and, when applicable, Section 302 of the Plans intended to be "qualified" within the meaning of ERISA or Section 401(a) 412 of the Code has have been determined by timely made except where the Internal Revenue Service failure to be so qualified, (iii) no "reportable event," as make such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents contributions or payments on a risk of liability to any governmental entity or other person which, individually or in the aggregate, timely basis would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which wouldnot, individually or in the aggregate, have a Company Xxxxxxxxx Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been All con- tributions required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined have been made in accordance with Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise Code to any liability employee pension benefit plan (as defined in Section 3(2) of the Company or ERISA) maintained by an ERISA Affiliate under Title IV of ERISA Xxxxxxxxx or which could reasonably be anticipated any of its subsidiaries have been timely made except where the failure to result in any claims being made against Purchaser by the PBGC, in any make such case, which presents contributions on a risk of liability which would, individually timely basis would not individu- ally or in the aggregate, aggregate have a Company Xxxxxxxxx Material Adverse Effect.
. For purposes of this Agreement, "ERISA Affiliate" shall mean any person (as defined in Section 3(9) of ERISA) that is a member of any group of persons described in Section 414(b), (c) With respect to each Plan that is subject to Title IV of ERISA), (im) the Company has provided to Parent and the Purchaser copies or (o) of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect Code of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually Xxxxxxxxx or in the aggregate, have a Company Material Adverse Effectsubsidiary is a member.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 3 contracts
Samples: Merger Agreement (Fairchild Industries Inc /De/), Merger Agreement (Rhi Holdings Inc), Merger Agreement (Fairchild Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 3.8 of the PurchaserCompany Disclosure Letter sets forth a list of all material employee benefit plans, (i) each "employee benefit plan" (as defined including but not limited to plans described in Section 3(3section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or by any trade or business, whether or not incorporatedincorporated (an "ERISA Affiliate"), that which together with the Company would be deemed a "single employer" within the meaning of Section 4001 section 4001(b)(15) of ERISA (an "ERISA AffiliateBenefit Plans") and all material employment and severance agreements with employees of the Company ("Employee Agreements"). True and complete copies of all Employee Agreements, including all amendments to date, have been made available to Parent by the Company.
(b) Except as set forth in Section 3.8 of the Company Disclosure Schedule, with respect to each Benefit Plan: (i) if intended to qualify under section 401(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Code"), for such plan has received a determination letter from the benefit Internal Revenue Service stating that it so qualifies and that its trust is exempt from taxation under section 501(a) of any employee or former employee the Code and nothing has occurred to the best knowledge of the Company since the date of such determination that could materially adversely affect such qualification or any of its ERISA Affiliates exempt status; (the "Plans"ii) is, and such plan has been operated administered in all material respects in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, law; (iii) no "reportable event," as such term is defined in Section 4043(c) breaches of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events fiduciary duty have occurred which are might reasonably likely be expected to give rise to any material liability on the part of the Company Company; (iv) no disputes are pending, or, to the knowledge of the Company, threatened that give rise to or an ERISA Affiliate under Title IV of ERISA or which could might reasonably be anticipated expected to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect give rise to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.material
Appears in 2 contracts
Samples: Merger Agreement (Healthsource Inc), Merger Agreement (Cigna Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed Schedule 5.20(a) lists each Seller Plan. Seller has heretofore made available to Parent and the Purchaser, if applicable, true and complete copies of each of the following documents: (i) a copy of each "employee benefit such Seller Plan (including all amendments thereto) or a description of each unwritten plan" ; (as defined in ii) a copy of the Forms 5500 filed with the Internal Revenue Service with respect to each such Seller Plan for the last two years; (iii) a copy of the actuarial report, if any, with respect to each such Seller Plan for the last two years; (iv) if the Seller Plan is funded through a trust or any third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof; (v) the most recent determination letter received from the Internal Revenue Service with respect to each Seller Plan that is intended to be qualified under Section 3(3401 of the Code; (vi) the most recent summary plan description; and (vii) any forms filed with Pension Benefit Guaranty Corporation and any Forms 5310 or 5330 filed with the Internal Revenue Service within the last three years.
(b) (i) none of the Seller Plans is or has been subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) there is no outstanding or contingent liability under Title IV of ERISA with respect to any Seller Plan; (iii) full and timely payment has been made of all amounts that Seller and each Subsidiary are required to pay as a contribution to the Seller Plans; (iv) each of the Seller Plans that is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be is so qualified; and (v) no Seller Plan provides benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees of Seller or any Subsidiary beyond their retirement or other termination of service (other than (1) coverage mandated by Section 4980B of the Code or state health continuation laws, (iii2) no death benefits or retirement benefits under any funded "reportable eventemployee pension benefit plan," as such that term is defined in Section 4043(c3(2) of ERISA, which is a qualified plan under Section 401(a) of the Code, and (3) deferred compensation, severance, vacation or other welfare benefits accrued and identified as liabilities on the books of Seller and Subsidiaries).
(c) Neither Seller nor any of its ERISA (for which the 30-day notice requirement Affiliates is contributing to the or is obligated to contribute to a Multiemployer Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred Plan nor does Seller or any Subsidiary have any outstanding liability with respect to any Plan that is subject Multiemployer Pension Plan. Neither the Seller nor any of its ERISA Affiliates has incurred or expects to incur any liability, except for ongoing funding obligations, under Title IV of ERISA which presents a risk of liability with respect to any governmental entity Multiemployer Pension Plan.
(d) Neither Seller nor any Subsidiary has, since January 1, 1996, made any commitment (i) to create any additional Seller Plan or other person whichto modify in any material respect any existing Seller Plan covering employees engaged in its businesses or (ii) to create or modify in any material respect any salary, individually bonus, and/or profit-sharing arrangement covering such employees.
(e) Neither Seller nor any Subsidiary and no Seller Plan (nor any trust created thereunder nor any trustee or administrator thereof) has engaged in any transaction, taken any action, or failed to take any action in connection with which Seller or any Subsidiary could be subject (whether directly or indirectly or as indemnitor) to any liability (whether actual or contingent) or material civil penalty assessed pursuant to Sections 409, 502(c), 502(i), 502(l), or 4071 of ERISA or material tax or material penalty imposed pursuant to Sections 4971, 4972, 4975 to 4980A, or 5000 of the aggregate, would Code. All returns and reports that were required to be filed with any Government Entity with respect to Seller Plans have been filed on a Company Material Adverse Effect, timely basis and were correct and complete in all material respects.
(ivf) there There are no pending, or to the Company's knowledge threatened, or anticipated claims (other than routine claims for benefits) by, on behalf of of, or against, against any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse EffectSeller Plan. No Seller Plan is a "multiemployer plan" presently under audit or examination (within the meaning of ERISA) nor has notice been received of a potential audit) by the Company Internal Revenue Service, the Department of Labor, or Pension Benefit Guaranty Corporation, nor are there any ERISA Affiliate ever contributed or been required to contribute matters pending with respect to any multiemployer planSeller Plan with the Internal Revenue Service under its Voluntary Compliance Resolution program, its Closing Agreement Program, or other similar programs.
(ig) No Each Seller Plan has incurred an "accumulated fund deficiency" been operated in all material respects in accordance with its terms and with applicable Law.
(as defined in Section 302 of ERISA or Section 412 of the Code)h) Except for ongoing funding obligations, whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any no liability under Title IV of ERISA except for required premium payments has been or is expected to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise be incurred by Seller or any Subsidiary with respect to any liability ongoing, frozen or terminated "single-employer plan," within the meaning of the Company Section 4001(a)(15) of ERISA (a "Title IV Pension Plan"), currently or formerly maintained by any of them, or any single-employer plan (an "ERISA Affiliate Plan") of any entity that is considered one employer with the Seller under Title IV Section 4001 of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies Section 414 of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, Code (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of an "ERISA Affiliate"). Neither any such Seller Plan which would, individually or in the aggregate, have is a Company Material Adverse Effect.
funded employee pension benefit plan (d"Pension Plan") Neither the Company nor any ERISA Affiliate Plan has failed an "accumulated funding deficiency" (whether or not waived) within the meaning of Section 412 of the Code or Section 302 of ERISA. Neither Seller nor any Subsidiary has provided, or is required to make any contribution or payment provide, security to any Pension Plan which or to any ERISA Affiliate Plan pursuant to Section 401(a)(29) of the Code. Neither Seller nor any ERISA Affiliate is, or, within the last seven years has resulted been, a participating employer under a multiple employer plan within the meaning of Section 4063 or could result in the imposition 4064 of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse EffectERISA.
(ei) Except as provided for the Employment Contracts referenced in this Agreement or as disclosed in the Disclosure LetterSection 3.6, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, payment or (ii) accelerate the time timing of any payment or the vesting of any rights or increase the amount of any compensation due any such employee or officerformer employee. Each Seller Plan may be unilaterally amended or terminated without liability except as to benefits accrued thereunder prior to the amendment or termination.
Appears in 2 contracts
Samples: Stock Purchase and Sale Agreement (Union Labor Life Insurance Co), Stock Purchase and Sale Agreement (Perini Corp)
Employee Benefit Plans; ERISA. (a) Except for those matters set forth in Schedule 4.11(a) and such of the following as previously disclosed to Parent and the Purchaserwould not have a Material Adverse Effect, (i) each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries Subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA AffiliateAFFILIATE"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "PlansPLANS") is, and has been been, operated in all material respects in accordance with its terms and in substantial compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the CodeInternal Revenue Code of 1986, except for failures that would not, individually or in as amended (the aggregate, have a Company Material Adverse Effect"CODE"), (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service (the "IRS") to be so qualified, (iii) no material withdrawal liability with respect to any "multiemployer pension plan" (as defined in Section 3(37) of ERISA) would be incurred by the Company and its ERISA Affiliates if withdrawal from such plan were to occur on the Effective Time, (iv) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse EffectERISA, and (ivv) there are no pendingmaterial pending or, or to the knowledge of the executive officers of the Company's knowledge threatened, threatened claims (other than routine claims for benefits) by, on behalf of or against, against any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer planother than routine benefit claim matters.
(b) (i) No Plan has incurred an "accumulated fund funding deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and waived, (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, and (iii) neither the Company nor any ERISA Affiliate has incurred any material withdrawal liability (including any contingent or secondary withdrawal liability) within the meaning of Sections 4201 and 4204 of ERISA to any "multiemployer plan" (within the meaning of Section 3(37) of ERISA) which has not been satisfied in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effectfull.
(c) With Except as set forth on Schedule 4.11(c), with respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented present the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no material adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse EffectPlan.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which or multiemployer plan which, in either case has resulted or could result in the imposition of a lien material Lien or the posting of a material bond or other material security under ERISA or the Code which would have a Company Material Adverse EffectCode.
(e) Except as otherwise set forth on Schedule 4.11(e) or as expressly provided for in this Agreement or as disclosed in the Disclosure LetterAgreement, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting vesting, or increase the amount of compensation due any such employee or officer.
(f) Except as set forth on Schedule 4.11(f), the Company and its Subsidiaries do not have any employment or consulting agreements, written or oral, with any Company Employees (as defined in Section 6.8).
Appears in 2 contracts
Samples: Merger Agreement (Marriott International Inc), Merger Agreement (Forum Group Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed described in the Corel Reports filed prior to Parent the date of this Agreement or as would not have a material adverse effect on Corel and the Purchaserits Subsidiaries taken as a whole, (i) each "employee benefit plan" all Corel Employee Benefit Plans (as defined in Section 3(3below) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and are in compliance (including the making of governmental filings) with all applicable Lawsrequirements of law, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company Corel nor any ERISA Affiliate of its Subsidiaries has incurred any liability under Title IV of ERISA except for required premium payments liabilities or obligations with respect to any such Corel Employee Benefit Plans, whether accrued, contingent or otherwise, nor to the PBGC, which payments have been made when dueknowledge of Corel are any such liabilities or obligations expected to be incurred. The execution of, and no events have occurred which are reasonably likely to give rise to any liability performance of the Company transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) constitute an ERISA Affiliate event under Title IV of ERISA any Corel Employee Benefit Plan that will or which could reasonably be anticipated to may result in any claims being made against Purchaser by payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect "to any employee. The only severance agreements or severance policies applicable to Corel or any of its Subsidiaries are the PBGCagreements and policies specifically referred to in Section 4.13 of the Corel Disclosure Letter. The last date on which stock options were granted to any officer or director of Corel was January 18, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect2000.
(cb) With respect As used herein "Corel Employee Benefit Plan" means any Plan entered into, established, maintained, sponsored, contributed to each or required to be contributed to by Corel or any of its Subsidiaries for the benefit of the current or former employees or directors of Corel or any of its Subsidiaries and existing on the date of this Agreement or at any time subsequent thereto and on or prior to the Effective Time and, in the case of a Plan that which is subject to Part 3 of Title I of ERISA, Section 412 of the Code or Title IV of ERISA, (i) at any time during the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since five-year period preceding the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectthis Agreement.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 2 contracts
Samples: Merger Agreement (Inprise Corp), Merger Agreement (Inprise Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each "employee benefit plan" (as defined in Each Company Benefit Plan is listed on Section 3(34.9(a) of the Employee Retirement Income Security Act Company Disclosure Letter, and a true and correct copy of 1974each Company Benefit Plan, related trust agreement or other funding instrument and summary plan description has been made available to Parent. Except to the extent specifically made available to Parent, as amended ("ERISA"))of the date hereof there are no amendments to any Company Benefit Plan that have been adopted or approved, and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of nor has the Company or any of its ERISA Affiliates Subsidiaries committed or undertaken to make any such amendments or to adopt or approve any new Company Benefit Plan.
(the "Plans"b) is, and Each Company Benefit Plan has been operated established, maintained and administered in accordance material compliance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there Laws There are no pendingactions, suits or to the Company's knowledge threatened, claims (other than routine claims for benefits) bypending, on behalf of or against, any to the knowledge of the Plans Company, threatened or anticipated with respect to any trusts related thereto Company Benefit Plan which would, individually or in the aggregate, have a Company Material Adverse Effect. No Each Company Benefit Plan that is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" “employee pension benefit Plan” (as defined in Section 3(2) of ERISA) and intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has been adopted under a prototype plan or volume submitter plan approved by the United States Internal Revenue Service and to the knowledge of the Company, nothing has occurred that would reasonably be expected to adversely affect the qualification of such Company Benefit Plan.
(c) Neither the Company nor any of its ERISA Affiliates maintains, contributes or has maintained or contributed in the last six (6) years prior to the date hereof to (x) any Company Benefit Plan that is subject to Section 302 or Title IV of ERISA or Section 412 of the Code), whether or not waived and (iiy) neither a “multiemployer plan” within the Company nor any ERISA Affiliate has incurred any liability under Title IV meaning of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV Section 3(37) of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by (z) a “multiple employer plan” within the PBGC, in any such case, which presents a risk meaning of liability which would, individually Sections 4063 and 4064 of ERISA or in the aggregate, have a Company Material Adverse Effect.
(cSection 413(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse EffectCode.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution execution or payment to any Plan which has resulted or could result in the imposition delivery of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, nor the consummation of the transactions contemplated by this Agreement will not will, either alone or in conjunction with any other event (whether contingent or otherwise), (i) entitle result in any current payment or former employee benefit becoming due or officer payable, or required to be provided, to any employee, director, or independent contractor of the Company or any ERISA Affiliate of its Subsidiaries, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to severance paybe provided to any such employee, unemployment compensation director, or independent contractor, or (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation. No payment which is or may be made by, from or with respect to any Company Benefit Plan either alone or in conjunction with any other payment, event or occurrence under any Company Benefit Plan, (i) will or could reasonably be characterized as an “excess parachute payment” under Section 280G of the Code and (ii) accelerate will not be fully deductible as a result of Section 162(m) of the time Code.
(e) Neither the Company nor any of payment its Subsidiaries has any liability with respect to an obligation to provide health or vesting other non-pension benefits to any employee of the Company or increase the amount any of compensation due any such employee its Subsidiaries beyond his or officerher retirement or other termination of employment other than coverage mandated by Law.
Appears in 2 contracts
Samples: Merger Agreement (PennantPark Floating Rate Capital Ltd.), Merger Agreement (MCG Capital Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed Section 5.16(a) of the Company Disclosure Letter sets forth a complete and correct list of each material Company Benefit Plan. With respect to Parent each Company Benefit Plan, the Company has made available to Parent, to the extent applicable, true, correct and the Purchaser, complete copies of (i) each "employee benefit plan" the Company Benefit Plan document, including any amendments thereto and any related trusts, (as defined in Section 3(3ii) of the Employee Retirement Income Security Act of 1974most recently prepared actuarial report or financial statements, as amended ("ERISA"))iii) the most recent summary plan description, and all material modifications thereto, and (iv) the most recent IRS determination or opinion letter.
(b) Each Company Benefit Plan, other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" than “multiemployer plans” within the meaning of Section 4001 3(37) of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been established, operated in accordance with its terms and administered in compliance (including the making of governmental filings) with all applicable Applicable Laws, including including, without limitation, ERISA and the applicable provisions of the Code, except for failures that would notto comply that, individually or in the aggregate, have would not reasonably be expected to result in a Company Material Adverse EffectEffect . Each Company Benefit Plan, which is subject to ERISA (iian “ERISA Plan”) each and is an “employee pension benefit plan” within the meaning of the Plans Section 3(2) of ERISA, intended to be "“qualified" ” within the meaning of Section 401(a) of the Code has been determined received a favorable determination or opinion letter from the IRS or is entitled to rely upon a favorable opinion issued by the Internal Revenue Service to be so qualifiedIRS. None of the Company nor any Company Subsidiary have any material unsatisfied withdrawal liability in respect of any “multiemployer plan”.
(c) Neither the Company, (iii) no "reportable event," as such term is defined in Section 4043(c) any of ERISA (for which the 30-day notice requirement Company Subsidiaries, to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)Knowledge of the Company, any trustee, administrator or other third‑party fiduciary and/or party-in-interest thereof, has occurred engaged in a transaction with respect to any Plan that is ERISA Plan, which, assuming the taxable period of such transaction expired as of the date hereof, could subject the Company or any Company Subsidiary to Title IV a tax or penalty imposed by Section 4975 of ERISA which presents a risk of liability to any governmental entity or other person the Code in an amount which, individually or in the aggregate, would have reasonably be expected to result in a Company Material Adverse Effect, and .
(ivd) there There are no pending, or to the Knowledge of the Company's knowledge threatened, threatened claims (other than routine claims for benefits) by, on behalf of or against, against any of the Plans Company Benefit Plan or any trusts trust related thereto which wouldwhich, individually or in the aggregate, have would reasonably be expected to result in a Company Material Adverse Effect. No Plan , except as previously disclosed to Parent, and no audit or other proceeding by a Governmental Entity is a "multiemployer plan" (within pending, or to the meaning Knowledge of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required Company, threatened with respect to contribute to any multiemployer such plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(de) Neither the Company nor any of the Company Subsidiaries has or is expected to incur any material liability, under subtitles C or D of Title IV of ERISA Affiliate has failed to make any contribution or payment Section 4063 or 4064 of ERISA, with respect to any Plan which has resulted ongoing, frozen or could result in terminated “single-employer plan”, within the imposition meaning of Section 400l(a)(15) of ERISA, currently or formerly maintained, contributed to or required to be contributed to by any of them, or any other entity that, together with the Company or any of the Company Subsidiaries, is treated as a lien or the posting single employer under Section 414 of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effector Section 4001 of ERISA (an “ERISA Affiliate”).
(ef) Except as provided for in Neither the execution and delivery of this Agreement or as disclosed in the Disclosure Letter, nor the consummation of the transactions contemplated by this Agreement will not could, either alone or in combination with another event, (i) entitle any current or former employee employee, director, officer or officer independent contractor of the Company or any ERISA Affiliate of the Company Subsidiaries to severance pay, unemployment compensation pay or any material increase in severance pay (other paymentthan severance pay required by any Applicable Law), or (ii) accelerate the time of payment or vesting vesting, or materially increase the amount of compensation due to any such employee employee, director, officer or independent contractor, (iii) directly or indirectly cause the Company to transfer or set aside any assets to fund any material benefits under any Company Benefit Plan, (iv) result in any forgiveness of indebtedness to any current or former employee, officer, director or independent contractor of the Company or (v) result in the payment of any amount that could, individually or in combination with any other such payment, constitute an “excess parachute payment” as defined in Section 280G(b)(1) of the Code. None of the Company nor any Company Subsidiary have any obligation to indemnify or otherwise reimburse any individual for any Taxes, interest or penalties incurred pursuant to Sections 280G, 4999 or 409A of the Code.
(g) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code) has been administered in all material respects in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and the regulations thereunder.
Appears in 2 contracts
Samples: Merger Agreement (CVS HEALTH Corp), Merger Agreement (CVS HEALTH Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed set forth on Schedule 3.20(a), with respect to Parent current or former employees, officers, directors, independent contractors, or consultants of any Platform Entity and its Subsidiaries, neither any Platform Entity nor any of its Subsidiaries sponsors, maintains, contributes, is required to contribute to, or has any Liability with respect to any “pension plan” (as such term is defined under Section 3(2) of ERISA) (the Purchaser, “Platform Pension Plans”); “welfare plan” (ias such term is defined under Section 3(1) each "of ERISA) (the “Platform Welfare Plans”); or any material employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"))incentive compensation, and all other employee benefit, bonus, incentive, stock option (equity or other equity-based)based compensation, severancedeferred compensation, change in control, welfare retention, termination, supplemental retirement, or severance arrangements (including postthe “Material Platform Non-retirement medical ERISA Plans”). The Platform Pension Plans, the Platform Welfare Plans, and life insurance) and fringe benefit plans (whether or not subject the Material Platform Non-ERISA Plans are collectively referred to ERISA) maintained or sponsored by herein as the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee “Platform Plans.” Each of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures Platform Pension Plans that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans is intended to be "qualified" within the meaning of qualified under Section 401(a) of the Code has been determined by received a favorable determination letter from the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term IRS or is defined in Section 4043(c) of ERISA (for which a volume submitter or prototype plan that has received an opinion letter from the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, IRS and (iv) there are no pendingfacts or circumstances that would be reasonably likely to affect the qualified status of any such Platform Pension Plans. The Platform Plans comply in form and in operation, or to in all material respects, with the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any applicable requirements of the Plans or any trusts related thereto which wouldCode, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" ERISA (within the meaning of ERISAif applicable) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer planand all applicable Laws.
(ib) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments With respect to the PBGCPlatform Plans, which payments all required contributions, expenses or premiums have been timely made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGCproperly accrued, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effectaccordance with all applicable Laws.
(c) With respect to each Plan that is subject to Title IV of ERISAThe Platform Plans have been established, (i) the Company has provided to Parent maintained and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereofadministered, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, in accordance with their respective terms and with all applicable provisions of ERISA (iii) since if applicable), the date of such valuation report there Code and other Laws, except where the failure to be so maintained and administered has been no adverse change not had and would not reasonably be expected to result in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse EffectEffect on any Platform Entity or its Subsidiaries.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for set forth in this Agreement or as disclosed in the Disclosure LetterSchedule 3.20(d), the consummation of the transactions contemplated by this Agreement hereby will not (i) result in an increase in or accelerate the vesting of any of the benefits available under any of the Platform Plans, or (ii) otherwise entitle any current or former director or employee of any Platform Entity or officer of the Company or any ERISA Affiliate its Subsidiaries to severance pay, unemployment compensation pay or any other paymentpayment from any Platform Entity or its Subsidiaries. Except as may be required by Law, neither the Platform Entities nor any of their Subsidiaries have announced any type of plan or binding commitment to (1) create any additional Platform Plans, or (ii2) accelerate amend or modify any of the time of payment existing Platform Plans with respect to any current or vesting former employee, independent contractor or increase the amount of compensation due any such employee or officerdirector.
Appears in 2 contracts
Samples: Exchange Agreement, Exchange Agreement
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent Schedule 3.2.14 sets forth a true and the Purchaser, (i) complete list of each "employee benefit plan" (as that term is defined in under Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether any other plan, program, arrangement or not subject to ERISA) agreement that is maintained or sponsored by the Company or a Subsidiary or with respect to which the Company, any of its subsidiaries Subsidiaries or any trade ERISA Affiliate (as defined below) could have any liability related to the employment or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit benefits of any employee present or former director, officer or employee of the Company or a Subsidiary under which the Company or a Subsidiary has any present or future obligation or liability including, but not limited to, the Employee Arrangements (as defined in Section 4.3.6) as in effect on the date of its ERISA Affiliates this Agreement (collectively the "Employee Benefit Plans").
(b) is, Each of the Employee Benefit Plans complies and has been operated in all material respects in accordance with its terms and in compliance applicable law (including the making of governmental filings) with all applicable Lawsincluding, including without limitation, ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) ); each of the Employee Benefit Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service; each trust maintained in connection with each such qualified plan has been determined by the Internal Revenue Service to be so qualifiedtax-exempt under Code Section 501(a); nothing has occurred to cause the loss of the qualified status of any such qualified plan; no Employee Benefit Plan has an accumulated or waived funding deficiency within the meaning of Code Section 412; neither the Company nor the Subsidiaries nor any trade or business which together with the Company or a Subsidiary would be deemed a "single employer" within the meaning of ERISA Section 4001 ("ERISA Affiliate") has incurred, directly or indirectly, any material liability (iiiincluding any material contingent liability) to or on account of an Employee Benefit Plan pursuant to Title IV of ERISA; no proceedings have been instituted to terminate any Employee Benefit Plan that is subject to Title IV of ERISA; no "reportable event," as such term is defined in ERISA Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived4043(b), has occurred with respect to any Employee Benefit Plan; and no condition exists that presents a material risk to the Company or an ERISA Affiliate of incurring a liability to or on account of a Employee Benefit Plan that is subject pursuant to Title IV of ERISA.
(c) No Employee Benefit Plan is a multiemployer plan (within the meaning of ERISA which presents Section 4001(a)(3)) and no Employee Benefit Plan is a risk of liability to any governmental entity multiple employer plan as defined in Code Section 413; all material contributions or other person which, individually amounts that are required to be paid by the Company or in the aggregate, would Subsidiaries as of the Effective Time with respect to each Employee Benefit Plan have a Company Material Adverse Effect, been either paid or accrued; and (iv) there are no material, pending, threatened or to the Company's knowledge threatened, anticipated claims (other than routine claims for benefits) by, or on behalf of or against, against any of the Employee Benefit Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectthereto.
(d) Neither the Company nor the Subsidiaries, nor any ERISA Affiliate Affiliate, nor any Employee Benefit Plan, nor any trust created thereunder, nor any trustee or administrator thereof has failed engaged in a transaction in connection with which the Company, the Subsidiaries, any ERISA Affiliate, any Employee Benefit Plan, any such trust, or any trustee or administrator thereof, or any party dealing with any Employee Benefit Plan or any such trust could be subject to make any contribution either a material civil penalty assessed pursuant to ERISA, including without limitation, Section 409, 502 or payment 4071 or a material tax or penalty imposed pursuant to any Plan which has resulted the Code, including without limitation, Section 4975, 4976 or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect6652.
(e) Except as provided for in this Agreement or as disclosed in With respect to each Employee Benefit Plan that is a "group health plan" within the Disclosure Lettermeaning of ERISA Section 601(a) and that is subject to Code Section 4980B, the consummation Company and the Subsidiaries have operated such plans in material compliance with the continuation coverage requirements of those provisions and Part 6 of Title I of ERISA.
(f) To the extent available to the Company, the Company has supplied Parent with true and correct copies of each of the transactions contemplated by this Agreement will not (i) entitle any current Employee Benefit Plans, all contracts relating thereto, or former employee or officer to the funding thereof, including, without limitation, all trust agreements, insurance contracts, administration contracts, investment management agreements, subscription and participation agreements, and recordkeeping agreements and, to the extent applicable, true and correct copies of the Company or any ERISA Affiliate most recent annual report, actuarial report, accountant's opinion of the plan's financial statements, summary plan description and Internal Revenue Service determination letter with respect to severance payeach Employee Benefit Plan, unemployment compensation or any other payment, or (ii) accelerate in each case as in effect on the time of payment or vesting or increase the amount of compensation due any such employee or officerdate hereof.
Appears in 2 contracts
Samples: Merger Agreement (Peerless Industrial Group Inc), Merger Agreement (R B Capital Corp)
Employee Benefit Plans; ERISA. (a) Except Section 4.8(a) of the Company Disclosure Schedule sets forth a list, as previously disclosed to Parent of the date hereof and except as required by Israeli Severance Pay Law 1963, of each deferred compensation, bonus or other incentive compensation, stock purchase, stock option and other equity compensation plan, program, agreement or arrangement; each severance or termination pay, medical, surgical, hospitalization, life insurance and other “welfare” plan, fund or program (within the Purchaser, (i) each "employee benefit plan" (as defined in meaning of Section 3(33(1) of the Employee Retirement Income Security Act of 1974, as amended 1974 ("“ERISA"”)), and all other employee benefit, bonus, incentive; each profit-sharing, stock option (bonus or other equity-based“pension” plan, fund or program (within the meaning of Section 3(2) of ERISA); each employment, severancetermination, change in control, welfare (including post-retirement medical retention or severance agreement; and life insurance) and fringe each other employee benefit plans (whether plan, fund, program, agreement or not subject to ERISA) arrangement, in each case, that is sponsored, maintained or sponsored contributed to or required to be contributed to by the Company or its subsidiaries or by any trade or business, whether or not incorporated, that together with the Company would be deemed a "“single employer" ” within the meaning of Section 4001 4001(b) of ERISA (any such trade or business, an "“ERISA Affiliate"”), or to which the Company or an ERISA Affiliate is party for the benefit of any employee Employee (the “Benefit Plans”). The Company has made available to Parent a true and complete copy of each Benefit Plan and all amendments thereto (or, in the case of any unwritten Benefit Plans, descriptions thereof) and a true and complete copy of the following items (in each case, only if applicable): (i) each trust or former employee other funding arrangement, (ii) each summary plan description and summary of material modifications, (iii) the most recently filed annual report on IRS Form 5500, (iv) the most recently received IRS determination letter and (v) any filings made with the ITA with respect to each Benefit Plan and any notices of the ITA and other correspondence with the ITA, in this regard.
(b) Each Benefit Plan is now and has been operated in all material respects in accordance with the requirements of all applicable Laws of the relevant jurisdiction, including ERISA and the Code, and in accordance with its terms. None of the Company or any ERISA Affiliate has engaged in any transactions that are reasonably expected to result in the imposition of its material penalties pursuant to Section 502(i) of ERISA, material damages pursuant to Section 409 of ERISA Affiliates (or a material Tax pursuant to Section 4975 of the "Plans") isCode. All contributions, premiums and has benefit payments under or in connection with the Benefit Plans that are required to have been operated made as of the date hereof in accordance with its the terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually Benefit Plans have been timely made or in have been reflected on the aggregate, most recent consolidated balance sheet filed or incorporated by reference into the Company SEC Reports. The Company does not have a Company Material Adverse Effect, any material liability to the ITA with respect to any Benefit Plan.
(iic) each of the Plans Each Benefit Plan intended to be "qualified" within the meaning of qualify under Section 401(a) of the Code has been determined by either received a favorable determination letter from the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred IRS with respect to each such Benefit Plan as to its qualified status under the Code, or with respect to a prototype Benefit Plan, the prototype sponsor has received a favorable IRS opinion letter, or the Benefit Plan or prototype sponsor has remaining a period of time under applicable treasury regulations of the Code or pronouncements of the IRS in which to apply for such a letter and make any amendments necessary to obtain a favorable determination or opinion as to the qualified status of each such Benefit Plan. No such determination or opinion letter has been revoked (nor, to the knowledge of the Company, has revocation been threatened) and no event has occurred since the most recent determination or opinion letter or application therefor relating to any such Benefit Plan that would reasonably be expected to adversely affect the qualification of such Benefit Plan or materially increase the costs relating thereto.
(d) With respect to each Benefit Plan that is subject to Title IV of ERISA which presents not a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "“multiemployer plan" (” within the meaning of Section 3(37) of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
, (i) No Plan has incurred an "accumulated fund deficiency" (as defined in no liability under Title IV or Section 302 of ERISA or Section 412 of the Code), whether Code has been incurred by the Company or any ERISA Affiliate that has not waived and been satisfied in full (ii) neither to the knowledge of the Company, no condition exists that presents a material risk to the Company nor or any ERISA Affiliate has incurred any of incurring a material liability under Title IV of ERISA except for required premium payments and (iii) the Pension Benefit Guaranty Corporation has not instituted proceedings under Section 4042 of ERISA to terminate any Benefit Plan and, to the PBGCknowledge of the Company, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability condition exists that presents a material risk that such proceedings will be instituted. None of the employees of the Company or an ERISA Affiliate under Title IV any of ERISA or which could reasonably be anticipated to result its Subsidiaries participate in any claims being made against Purchaser multiemployer pension or retirement plan (as defined under applicable local Law), or any pension or retirement plan sponsored by the PBGC, in any such case, which presents a risk of liability which would, individually union or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared similar employee representative or sponsored by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effectmore than one unrelated employer.
(e) Except There are no material unresolved claims or disputes under the terms of, or in connection with, any Benefit Plan (other than routine undisputed claims for benefits), and, as provided of the date hereof, no action, legal or otherwise, has been commenced with respect to any such material claim.
(f) No amounts payable under any Benefit Plan shall fail to be deductible for in federal income Tax purposes by virtue of Section 280G of the Code.
(g) Neither the execution and delivery of this Agreement or as disclosed in the Disclosure Letter, nor the consummation of the transactions contemplated by this Agreement will not hereby (either alone or in combination with another event) will, (i) entitle any current Participant to severance, change in control or former employee or officer of the Company or any ERISA Affiliate to severance retention pay, unemployment compensation or any other paymentpayment or benefit, or (ii) accelerate the time of payment or vesting vesting, trigger any payment or funding (through a grantor trust or otherwise) of, compensation or benefits under, or increase the amount payable or trigger any material obligation to any Participant, or (iii) result in any breach or violation of, or a default under, any Benefit Plan.
(h) Neither the Company nor any of compensation due its Subsidiaries has any material obligations for retiree health or life insurance benefits under any Benefit Plan (other than for continuation coverage required to be provided pursuant to Section 4980B of the Code).
(i) Except as expressly permitted pursuant to Section 6.1, since December 31, 2007, there has not been any adoption, amendment or termination by the Company or any of its Subsidiaries of any Benefit Plan, or any changes in any assumptions used to calculate funding obligations with respect to any Benefit Plan, or any change in the manner in which contributions to any Benefit Plan are made or the basis on which such employee contributions are determined, other than amendments or officerchanges required to ensure that such Benefit Plan is not then out of compliance with applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Johnson & Johnson), Merger Agreement (Omrix Biopharmaceuticals, Inc.)
Employee Benefit Plans; ERISA. (a) Schedule 3.15(a)(i) to the Company Disclosure Letter lists all Benefit Plans. Except as previously disclosed otherwise provided for in this Agreement or as described on Schedule 3.15(a)(ii) to Parent the Company Disclosure Letter, neither the Company nor any ERISA Affiliates thereof has amended or modified any Benefit Plan since May 1, 2005, or has any commitment or formal plan, whether legally binding or not, to create any additional Benefit Plan or modify or change any existing Benefit Plan that would affect any Business Employee. The Company has heretofore made available to the Buyer, with respect to each of the Benefit Plans, true and correct copies of each of the Purchaser, following documents: (i) each "employee benefit plan" the Plan document (as defined including any trust or similar agreements or insurance policies or contracts relating thereto) and any amendments thereto (or with respect to any oral Plan in Section 3(3) existence to the Knowledge of the Employee Retirement Income Security Act Company, a written description of 1974the Plan); (ii) the most recent description or summary provided to participants in such Plans, including summary plan descriptions and related summaries of material modifications as amended required by ERISA; ("ERISA")iii) the annual report on Form 5500 and where required, financial statements (including actuarial report) for each of the last three years, relating to the Plans; and (iv) with respect to the Multiemployer Plan to which the Company has made contributions on behalf of Business Employees pursuant to the Pittsburgh Teamsters Contract or any other collective bargaining agreement (each a “Multiemployer Plan”), a true and all other employee benefitcorrect copy of a statement provided by such Multiemployer Plan regarding the funding status of such Plan and the Company’s potential withdrawal liability from such Plan, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored a description of the methodology used by the Company or its subsidiaries or any trade or businessPlan to determine withdrawal liability.
(b) Except as would not reasonably be expected to result in a Material Adverse Effect, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, each Benefit Plan complies and has been operated administered in accordance form and in operation, in all material respects, in compliance with its terms and in compliance (including the making of governmental filings) with all requirements of law and regulation applicable Lawsthereto, including and neither the Company nor any ERISA and Affiliate thereof has received any notice from any Governmental Entity questioning or challenging such compliance.
(c) To the applicable provisions Knowledge of the Company, there have been no acts or omissions relating to the Benefit Plans which would constitute “prohibited transactions” under ERISA or the Code, or have given rise to or may give rise to fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, .
(iid) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there There are no pendingmaterial actions, suits or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of pending or against, threatened involving any of the Plans or any trusts related thereto Benefit Plan and no facts exist which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required could reasonably be expected to contribute give rise to any multiemployer plansuch actions, suits or claims (other than routine claims for benefits).
(e) All contributions have been timely made to each Benefit Plan.
(i) No Plan has incurred an "“accumulated fund funding deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code)” exists with respect to any Benefit Plan, whether or not waived and waived.
(ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer None of the Company or any ERISA Affiliate is required to severance pay, unemployment compensation or any other provide security to a Benefit Plan under Section 401(a)(29) of the Code.
(iii) The Company and each ERISA Affiliate have paid all premiums (and interest charges and penalties for late payment, if applicable) due the PBGC with respect to each Benefit Plan for each plan year thereof for which such premiums are required. Within the past six (6) years, no proceeding has been commenced by the PBGC to terminate any Benefit Plan.
(f) With respect to each Multiemployer Plan: (1) the Company and each ERISA Affiliate have not withdrawn from a Multiemployer Plan in a “complete withdrawal” or a “partial withdrawal” as defined in Sections 4203 and 4205 of ERISA, respectively, so as to result in any liability which has not been fully paid; (ii2) accelerate no such Multiemployer Plan has been terminated or has been in reorganization under ERISA so as to result, directly or indirectly, in any Liability of the time Company under Title IV of ERISA; and (3) no proceeding has been initiated by any person (including the PBGC) to terminate any Multiemployer Plan.
(g) No obligation with respect to any Transferred Employee that will constitute an Assumed Liability shall require the Buyer to make a payment or vesting or increase the amount that is conditioned on a change of compensation due any such employee or officercontrol.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Del Monte Foods Co), Asset Purchase Agreement (TreeHouse Foods, Inc.)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to in the Parent SEC Reports, at the date hereof, Parent and the Purchaser, (i) each "its subsidiaries do not maintain or contribute to or have any obligation or liability to or with respect to any material employee benefit plan" plans, programs, arrangements or practices (such plans, programs, arrangements or practices of Parent and its subsidiaries being referred to as defined the "PARENT PLANS"), including employee benefit plans within the meaning set forth in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by similar material arrangements for the Company or provision of benefits. Neither Parent nor any of its subsidiaries maintains or has any trade financial or business, whether or not incorporated, that would be deemed a funding liability with respect to any "single employerMulti-employer Plan" within the meaning of Section 4001 3(37) of ERISA (an or a "ERISA Affiliate"), for Multiple Employer Plan" within the benefit meaning of any employee or former employee Section 413(c) of the Company or Code. Neither Parent nor any of its ERISA Affiliates (subsidiaries has any obligation to create or contribute to any additional such plan, program, arrangement or practice or to amend any such plan, program, arrangement or practice so as to increase benefits or contributions thereunder, except as required under the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the CodeParent Plans, except for failures under existing collective bargaining agreements or to comply with applicable law. Neither Parent nor any of its subsidiaries has any obligation to contribute to any plan subject to Title IV of ERISA.
(b) Except as disclosed in the Parent SEC Reports, (i) there have been no prohibited transactions within the meaning of Section 406 or 407 of ERISA or Section 4975 of the Code with respect to any of the Parent Plans that would notcould result in penalties, individually taxes or liabilities which, singly or in the aggregate, could have a Company Parent Material Adverse Effect, (ii) each of the Parent Plans has been operated and administered in all material respects in accordance with applicable laws during the period of time covered by the applicable statute of limitations, (iii) each of the Parent Plans which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as qualified and such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") determination has not been waived)modified, revoked or limited by failure to satisfy any condition thereof or by a subsequent amendment thereto or a failure to amend, except that it may be necessary to make additional amendments retroactively to maintain the "qualified" status of such Parent Plans, and the period for making any such necessary retroactive amendments has not expired, (iv) to the best knowledge of Parent and its subsidiaries, there are no material pending, threatened or anticipated claims involving any of the Parent Plans other than claims for benefits in the ordinary course, and (v) no act, omission or transaction (individually or in the aggregate) has occurred with respect to any Parent Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition any material liability (direct or indirect) of a lien Parent or the posting any subsidiary under Sections 409 or 502(c)(i) or (l) of a bond or other security under ERISA or Chapter 43 of Subtitle (A) of the Code which would have Code. Each Parent Plan can be unilaterally terminated by Parent or a Company Material Adverse Effectsubsidiary at any time without material liability, other than for amounts previously reflected in the financial statements (or notes thereto) included in the Parent SEC Reports.
(ec) Except as provided for in this Agreement The Parent SEC Reports contain a true and complete summary or as disclosed in the Disclosure Letter, the consummation list of the transactions contemplated by this Agreement will not (i) entitle any current or former otherwise describe all material employment contracts and other employee benefit arrangements with "change of control" or officer of the Company or any ERISA Affiliate to similar provisions and all severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officeragreements with executive officers.
Appears in 2 contracts
Samples: Merger Agreement (Westell Technologies Inc), Merger Agreement (Teltrend Inc)
Employee Benefit Plans; ERISA. (ai) Section 3.3(q)(i) of the TEPPCO Disclosure Letter sets forth a complete and accurate list of all TEPPCO Plans. With respect to each TEPPCO Plan, as applicable, true and complete copies of (A) the TEPPCO Plan documents (including all amendments thereto), (B) the summary plan description, (C) the funding instrument, (D) the most recent favorable determination letter issued by the IRS, and (E) the most recent actuarial valuation report and most recent asset liability study have been furnished to Enterprise. Except for the TEPPCO Plans, none of the TEPPCO Partnership Group Entities maintains or has any liability or obligations, fixed, contingent or otherwise, with respect to any other employee benefit or compensation plan, program, policy, arrangement or agreement.
(ii) With respect to the TEPPCO Plans, all contributions required to be made to or pursuant to the terms of each of the TEPPCO Plans or applicable Law by the TEPPCO Partnership Group Entities have been timely made or accrued on the financial statements of the TEPPCO Partnership Group Entities.
(iii) The TEPPCO Plans have been maintained, operated and administered, in all material respects, in accordance with their terms and all applicable Laws.
(iv) Except as previously disclosed to Parent and the Purchaser, (i) each "employee benefit plan" (as defined otherwise set forth in Section 3(33.3(q)(iv) of the Employee Retirement Income Security Act TEPPCO Disclosure Letter, neither the execution and delivery of 1974this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with another event, such as amended termination of employment) will result in ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insuranceA) and fringe benefit plans (whether or not subject any payment becoming due to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee director of any of the Company TEPPCO Partnership Group Entities or being nondeductible under section 280G of the Code or (B) the vesting of any compensation or benefit payable to any employee or director of any of its ERISA Affiliates the TEPPCO Partnership Group Entities.
(v) The IRS has issued a favorable determination letter with respect to each TEPPCO Plan that is intended to be a qualified plan under section 401(a) of the "Plans") is, Code and each such TEPPCO Plan has been operated and administered in all material respects in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the CodeLaw, except for such compliance failures that would notthat, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each may be corrected under the EPCRS program of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement IRS without material liability to the Pension Benefit Guaranty Corporation TEPPCO Partnership Group Entities.
("PBGC"vi) has not been waived)There are no pending or, has occurred with respect to the knowledge of DEFS, threatened actions, suits, audits, investigations, claims or proceedings against or relating to any TEPPCO Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefitsbenefits thereunder).
(vii) by, on behalf of or against, any Except as set forth in Section 3.3(q)(vii) of the Plans TEPPCO Disclosure Letter, each TEPPCO Plan covers only employees or any trusts related thereto which would, individually or in directors of the aggregate, have a Company Material Adverse EffectTEPPCO Partnership Group Entities. No TEPPCO Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (plan as defined in Section 302 3(37) of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse EffectERISA.
(cviii) With respect to Except as set forth in Section 3.3(q)(viii) of the TEPPCO Disclosure Letter, each TEPPCO Plan that is not a DEFS Plan may be unilaterally terminated at any time by any of the TEPPCO Partnership Group Entities without liability, other than for benefits accrued thereunder prior to such termination.
(ix) As to any TEPPCO Plan subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in event or condition which presents the funded status material risk of any such Plan plan termination by the Pension Benefit Guaranty Corporation (“PBGC”), no accumulated funding deficiency, whether or not waived, within the meaning of Section 302 of ERISA or section 412 of the Code has been incurred, no reportable event within the meaning of Section 4043 of ERISA (for which wouldthe disclosure requirements of Regulation section 4043.1 et seq., individually or in promulgated by the aggregatePBGC, have a Company Material Adverse Effectnot been waived) has occurred, no notice of intent to terminate the plan has been given under Section 4041 of ERISA, no proceeding has been instituted under Section 4042 of ERISA to terminate the plan and no liability to the PBGC has been incurred (other than for premium payments under Section 4007 of ERISA).
(dx) Neither the Company nor any ERISA Affiliate No act, omission or transaction has failed to make any contribution or payment to any Plan occurred which has resulted or could would result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation on any of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company TEPPCO Partnership Group Entities or any ERISA Affiliate indemnitee thereof of (A) breach of fiduciary liability damages under Section 409 of ERISA, (B) a civil penalty assessed pursuant to severance pay, unemployment compensation or any other paymentSection 502 of ERISA, or (iiC) accelerate a Tax imposed pursuant to Chapter 43 of Subtitle D of the time of payment or vesting or increase the amount of compensation due any such employee or officerCode.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Duke Energy Corp), Purchase and Sale Agreement (Spectra Energy Corp.)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 2.19(a) of the Purchaser, (i) Seller Disclosure Schedule sets forth each "material written employee benefit plan" , arrangement, policy, practice, Contract or agreement (as defined in including, without limitation, employment agreements, consulting agreements, change of control agreements and severance agreements, deferred compensation, incentive compensation, bonus, stock option, equity-based and stock purchase plans) of any type (including but not limited to “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company, any of the Company or its subsidiaries Subsidiaries or any trade or business, whether or not incorporated, that together with the Company would be deemed to be a "“single employer" ” within the meaning of Section 4001 section 4001(b)(1) of ERISA (an "“ERISA Affiliate")”) in each case (i) with respect to which the Company or any of the Company Subsidiaries has or may have a Liability, or (ii) which is maintained for the benefit of any employee current or former employee employees of the Company or any of its ERISA Affiliates the Company Subsidiaries (collectively, the "“Benefit Plans"”). Section 2.19(a) is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the CodeSeller Disclosure Schedule separately lists or identifies each Benefit Plan (i) that is not sponsored or maintained by the Company or any of the Company Subsidiaries or (ii) which provides change in control benefits.
(b) With respect to each Benefit Plan and to the extent applicable, except for failures that Seller has delivered or made available to Purchaser true and complete copies of all plan documents, summary plan descriptions, summaries of material modifications, trust agreements and other related agreements including all amendments to the foregoing; the two most recent annual reports; the most recent annual and periodic accounting of plan assets; the most recent determination letter received from the United States Internal Revenue Service.
(c) Except where failure to comply would not, individually or in the aggregate, not be reasonably likely to have a Company Material Adverse Effect, with respect to each Benefit Plan: (iii) each of the Plans if intended to be "qualified" within the meaning of Section qualify under section 401(a) of the Code Code, such plan so qualifies, and its trust is exempt from taxation under section 501(a) of the Code; (ii) such plan has been determined by the Internal Revenue Service to be so qualified, administered in accordance with its terms and with all applicable Laws; (iii) no "reportable event," as such term is defined all contributions have been made when due or have been accrued on the Company’s financial statements in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred accordance with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and GAAP; (iv) there no breaches of fiduciary duty have occurred; (v) no claims are no pendingpending or, to Seller’s knowledge, threatened or to the Company's knowledge threatenedanticipated by or on behalf of any Benefit Plan, claims by any employee or beneficiary under any such Plan or otherwise involving any such Benefit Plan (other than routine claims for benefits); (vi) by, on behalf none of or againstthe Company, any of the Plans Company Subsidiaries, any ERISA Affiliate, nor, to Seller’s knowledge, any trustee or administrator thereof, has engaged in a transaction or has taken or failed to take any trusts related thereto action in connection with which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute of the Company Subsidiaries could be subject to any multiemployer planLiability for either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code; (vii) no Lien imposed under the Code or ERISA exists or is reasonably likely to exist; and (viii) all contributions and premiums due (including any extensions for such contributions and premiums) have been timely made in full.
(id) No Plan has incurred an "accumulated fund deficiency" (Except as defined in disclosed on Section 302 of ERISA or Section 412 2.19(d) of the Code), whether or not waived and Seller Disclosure Schedule: (iii) neither the Company nor any ERISA Affiliate has incurred any liability material Liability under Title IV of ERISA except that has not been satisfied in full (including pursuant to Sections 4063-4064 and 4069 of ERISA) and, to Seller’s knowledge, no basis for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of such Liability exists; (ii) neither the Company or an nor any ERISA Affiliate under Title IV of ERISA maintains (or which could reasonably be anticipated to result in contributes to), or has maintained (or has contributed to) within the last six years, any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan employee benefit plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, ; and (iii) since there is no pending dispute between the date Company or any ERISA Affiliate concerning payment of contributions or payment of withdrawal liability payments.
(e) With respect to each Benefit Plan that is an “employee welfare benefit plan” (as defined in Section 3(1) of ERISA), except as specifically disclosed in Section 2.19(e) of the Seller Disclosure Schedule, no such valuation report there has been no adverse change plan provides medical or death benefits with respect to current or former employees of the Company or any of the Company Subsidiaries beyond their termination of employment, other than on an employee-pay-all basis or except as required by applicable Law. Except where failure to comply would not be reasonably likely to result in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect, with respect to each Benefit Plan that is a “group health plan” (as defined in Section 5000(b) of the Code), each such Benefit Plan currently complies and has complied with the requirements of Part 6 of Title I of ERISA and Sections 4980B and 5000 of the Code.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(ef) Except as provided for set forth in this Agreement or as disclosed in Section 2.19(f) of the Seller Disclosure LetterSchedule, the consummation of the transactions contemplated by this Agreement will not not, either alone or in combination with any other event, (i) entitle any current or former employee employee, officer, director or officer consultant of the Company or any ERISA Affiliate of the Company Subsidiaries to severance pay, unemployment compensation or any other payment, termination payment or (ii) accelerate the time of payment or vesting vesting, or increase the amount of compensation of, or otherwise enhance, any benefit due to any such employee employee, officer, director or officerconsultant, including, without limitation, with respect to any equity-based awards held by them under the equity compensation plans maintained by Seller and its Affiliates, or (iii) result in any payment that would fail to be deductible under Section 280G of the Code.
(g) No Benefit Plan is a “multiemployer plan” (as defined in Section 3(37) of ERISA).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Rite Aid Corp), Stock Purchase Agreement (Jean Coutu Group (PJC) Inc.)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 4.9 of the Purchaser, (i) each "Company Disclosure Letter sets forth a list of all material employee benefit plan" plans (as defined including but not limited to plans described in Section 3(3) section 3 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or by any trade or business, whether or not incorporatedincorporated (an "ERISA Affiliate"), that which together with the Company would be deemed a "single employer" within the meaning of Section 4001 section 4001(b)(15) of ERISA (an "ERISA AffiliateBenefit Plans") and all material employment and severance agreements with employees of the Company ("Employee Agreements"). True and complete copies of all Benefit Plans and Employee Agreements, including all amendments to date, have been made available to Acquiror or its representatives by the Company.
(b) With respect to each Benefit Plan, except as otherwise disclosed to Acquiror: (i) if intended to qualify under section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code"), for such plan has received a determination letter from the benefit of any employee or former employee Internal Revenue Service stating that it so qualifies and that its trust is exempt from taxation under section 501(a) of the Company or any of its ERISA Affiliates Code; (the "Plans"ii) is, and such plan has been operated administered in all material respects in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, law; (iii) no "reportable event," as such term is defined in Section 4043(c) breaches of ERISA (for fiduciary duty have occurred which might reasonably be expected to give rise to material liability on the 30-day notice requirement to part of the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and Company; (iv) there no disputes are no pending, or or, to the knowledge of the Company's knowledge threatened, claims threatened that might reasonably be expected to give rise to material liability on the part of the Company (other than routine claims for benefits); (v) by, no prohibited transaction (within the meaning of section 406 of ERISA) has occurred that might reasonably be expected to give rise to material liability on behalf of or against, any the part of the Plans or Company; and (vi) all contributions required to be made to such plan as of the date hereof (taking into account any trusts related thereto which would, individually or extensions for the making of such contributions) have been made in the aggregate, have a Company Material Adverse Effect. full.
(c) No Benefit Plan is a "multiemployer pension plan," (within the meaning as defined in section 3(37) of ERISA, nor is any Benefit Plan a plan described in section 4063(a) nor of ERISA.
(d) No liability under Title IV of ERISA has been incurred by the Company or any ERISA Affiliate ever contributed or that has not been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined satisfied in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when duefull, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which condition exists that presents a material risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate of incurring a material liability under such Title.
(e) No Benefit Plan has incurred an accumulated funding deficiency, as defined in section 302 of ERISA or section 412 of the Code, whether or not waived.
(f) With respect to severance payeach Benefit Plan that is a "welfare plan" (as defined in section 3(1) of ERISA), unemployment compensation no such plan provides medical or death benefits with respect to current or former employees of 9 13 the Company or any of its Significant Subsidiaries beyond their termination of employment (other payment, or (ii) accelerate than to the time of payment or vesting or increase the amount of compensation due any such employee or officerextent required by applicable law).
Appears in 2 contracts
Samples: Merger Agreement (Horizon Acquisition Inc), Merger Agreement (Ameriwood Industries International Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaserset forth in Schedule 4.16(a), (i) each "no employee benefit plan" plans or arrangements of any type (as defined including, without limitation, plans described in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) are maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of Subsidiary and neither the Company or any of nor its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended Subsidiary is obligated to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect contribute to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of section 4001(a)(3) of ERISA). Each of the employee benefit plans identified on Schedule 4.16(a) nor as a plan qualified under Section 401(a) of the Code has received a favorable determination letter from the Company or any ERISA Affiliate ever contributed or been required IRS and no event has occurred since the date of such letter that will cause such plan to contribute to any multiemployer planlose its qualified status.
(ib) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 The Company and its Subsidiary have complied with requirements of ERISA or Section 412 section 4980B of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in where any such case, which presents a risk of liability which would, individually or in the aggregate, noncompliance would not have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate Employee to severance pay, unemployment compensation or any other payment, or ; (ii) accelerate the time of payment or vesting of, or increase the amount of of, compensation due to any Company Employee (other than as contemplated by Section 7.12(c) or (d) hereof); or (iii) result in the payment to any Company Employee of an amount that will be an "excess parachute payment" (within the meaning of section 28OG(b)(1) of the Code).
(d) Except with respect to the plans identified on Schedule 4.16(a), neither the Company nor its Subsidiary has any liability with respect to any "welfare plan" (as defined in section 3(l) of ERISA) that provides benefits to retired employees (other than as required by section 601 of ERISA). With respect to any welfare plan identified on Schedule 4.16(a) that provides benefits to retired employees, the Company has reserved the right to amend or terminate such employee plan.
(e) Neither the Company nor its Subsidiary has either incurred or officer.reasonably expects to incur any material liability under Title IV of ERISA (other than for retirement
Appears in 2 contracts
Samples: Stock Purchase Agreement (Affiliated Managers Group Inc), Stock Purchase Agreement (Affiliated Managers Group Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 4.9(a) of the Purchaser, (i) each "Company Disclosure Schedule sets forth a list of all material employee benefit plan" (as defined plans, programs and arrangements providing retirement, pension, health, medical, life insurance, disability, deferred compensation, bonus, incentive compensation, options, equity-based compensation, retention, severance or other similar benefits, whether or not in Section writing, including plans described in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA")”), and all other employee benefitmaintained for the benefit of any current or former employee, bonus, incentive, stock option (officer or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether director of the Company or not subject to ERISA) maintained or sponsored any of its Subsidiaries by the Company or its subsidiaries or by any trade or business, whether or not incorporated, that would be deemed which together with the Company is treated as a "single employer" within employer under section 414(b), (c), (m) or (o) of the meaning of Section 4001 of ERISA Code (an "“ERISA Affiliate")”) or pursuant to which the Company or any of its Subsidiaries has an obligation or a liability (such plans, for the benefit of any employee or former employee “Benefit Plans”) and all material employment and severance agreements with employees of the Company or any of its ERISA Affiliates Subsidiaries (such agreements, “Benefit Agreements”).
(b) With respect to each Benefit Plan and, where applicable, Benefit Agreement that is not a “multiemployer plan” within the "Plans"meaning of section 3(37) isor 4001(a)(3) of ERISA: (i) if intended to be qualified under section 401(a) of the Code, such Benefit Plan (A) is the subject of an unrevoked favorable determination letter from the IRS, (B) has remaining a period of time under the Code or applicable Treasury regulations or IRS pronouncements in which to request, and make any amendments necessary to obtain, such a letter from the IRS, or (C) is a prototype or volume submitter plan entitled, under applicable IRS guidance, to rely on the favorable opinion or advisory letter issued by the IRS to the sponsor of such prototype or volume submitter plan, and, to the knowledge of the Company, nothing has occurred since the date of the most recent such determination, opinion or advisory letter that would adversely affect such qualification, (ii) to the knowledge of the Company, such Benefit Plan has been operated administered in all material respects in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualifiedLaw, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement disputes are pending, or, to the Pension knowledge of the Company, threatened that, if decided adversely to such Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, Company would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, except as would not have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle result in, or accelerate the time of payment of or increase the vested benefit of, compensation due any current or former employee or officer of the Company.
(c) Neither the Company nor any ERISA Affiliate has now or at any time during the last six years contributed to, sponsored, or maintained a pension plan (within the meaning of Section 3(2) of ERISA) subject to Section 412 of the Code or Title IV or ERISA, including any multiemployer plan as defined in Section 4001(a)(3) of ERISA.
(d) The transactions contemplated by this Agreement will not result in payments subject to loss of deduction pursuant to Section 280G of the Code.
(e) None of the Benefit Plans provides for or promises medical, group health or retiree life insurance benefits for a period following retirement or other termination of employment to any current or former employee, officer or director of the Company or any of its Subsidiaries, except as required by Section 4980B of the Code, Part 6 of Subtitle B of Title I of ERISA Affiliate to severance pay, unemployment compensation or any other payment, applicable law.
(f) None of the Company or its Subsidiaries has any knowledge of any nonexempt “prohibited transaction” (iiwithin the meaning of Section 406 of ERISA or Section 4975 of the Code) accelerate the time of payment or vesting or increase the amount of compensation due with respect to any such employee or officerPlan that would have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Checkfree Corp \Ga\), Merger Agreement (Corillian Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent Schedule 4.18(a) sets forth a true, complete and the Purchasercorrect list of all plans, (i) each "programs, policies, arrangements, agreements and commitments, including any employee benefit plan" plans (as defined in Section within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"))”) that Seller maintains or has entered into or is obligated under with respect to personnel of Seller that provides or promises compensation, and all other employee benefit, bonus, incentive, stock option (bonuses or other forms of incentive pay, retirement benefits, deferred compensation, severance benefits, welfare benefits, fringe benefits, equity or equity-basedbased compensation or any other benefit or perquisite (collectively, the “Employee Benefit Plans”).
(b) With respect to each Employee Benefit Plan, severanceSeller has provided Buyer with a true and complete copy of the Employee Benefit Plan document and the summary plan description, change in controlif applicable, welfare or, if no such document or summary exists, a written description of the Employee Benefit Plan.
(including post-retirement medical and life insurancec) and fringe benefit plans Except as set forth on Schedule 4.18(c): (whether or not i) no Employee Benefit Plan is subject to Title IV of ERISA; and (ii) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, Seller has no Employee Benefit Plans that would be deemed a "single employer" are multiemployer plans within the meaning of Section 4001 3(37) of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans ERISA. Each Employee Benefit Plan intended to be "qualified" within the meaning of qualified under Section 401(a) of the Code (a “qualified plan”) has received or applied for a favorable determination letter and nothing has occurred (or has failed to occur) since the date of the most recent such letter that could reasonably be expected to cause a loss of the qualified status of any such Employee Benefit Plan. There has been determined by no non-exempt prohibited transaction within the Internal Revenue Service to be so qualifiedmeaning of Section 406 of ERISA, (iii) no "reportable event," as such term is defined in or Section 4043(c) 4975 of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)Code, has occurred with respect to any Plan that of the Employee Benefit Plans; each of the Employee Benefit Plans has been operated in all material respects in accordance with both its terms and all applicable Laws; no personnel of Seller is subject liable for, or is reasonably expected to Title IV of ERISA which presents a risk of liability to any governmental entity or other person whichbe liable for, individually or Tax penalties (in the aggregateform of a twenty percent (20%) excise Tax, would have a Company Material Adverse Effect, early income recognition or both) for failure of any Employee Benefit Plan to satisfy in form or operation the applicable requirements of Section 409A of the Code; and (iv) there are no pending, or to the Company's knowledge threatenedactions, claims (other than routine claims for benefits) by), on behalf of lawsuits or againstarbitrations pending or, any of the Plans or any trusts related thereto which wouldto Seller’s knowledge, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute threatened with respect to any multiemployer plan.
Employee Benefit Plan or, to Seller’s knowledge, against any fiduciary of any Employee Benefit Plan and, to Seller’s knowledge, nothing has occurred (ior failed to occur) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are that could reasonably likely be expected to give rise to any liability of the Company such claim, action, lawsuit or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectarbitration.
(d) Neither the Company nor any ERISA Affiliate Except as set forth on Schedule 4.18(d), Seller is not providing, and has failed no obligation to make any contribution provide, post-termination health benefits or payment life insurance coverage to any Plan which has resulted former personnel of Seller or could result in the imposition any of a lien their dependents, former dependents or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effectbeneficiaries.
(e) Except as expressly provided for in herein or as set forth on Schedule 4.18(e), neither the execution and delivery of this Agreement or as disclosed in the Disclosure Letter, nor the consummation of the transactions contemplated by this Agreement herein will not (i) entitle any current or former employee or officer personnel of the Company or any ERISA Affiliate Seller to severance pay, unemployment compensation or any other similar payment, or (ii) except to the extent vesting resulting from a partial termination of a qualified plan occurs due to applicable Law, accelerate the time of payment or vesting or increase the amount of any compensation due under any such employee or officerEmployee Benefit Plan.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Huron Consulting Group Inc.)
Employee Benefit Plans; ERISA. (a) Except AHM has delivered to, or made available for review by, the Company true, correct and complete copies of all Plans (collectively, "AHM Benefit Plans") currently maintained, or contributed to, or required to be maintained or contributed to, by AHM or New Holdco or any other person or entity that, together with AHM or New Holdco, is treated as previously disclosed to Parent and the Purchasera single employer under Section 414(b), (ic), (m) each "employee benefit plan" or (as defined in Section 3(3o) of the Employee Retirement Income Security Act of 1974, as amended Code (each a "ERISACommonly Controlled Entity")), and or with respect to which AHM or New Holdco or any Commonly Controlled Entity has any liability, including, without limitation, all other employee benefitemployment, bonus, incentive, stock option (or other equity-based), severancetermination, change in control, welfare severance or other contracts for the benefit of any current or former employees, officers or directors of AHM or New Holdco that require any material future performance by AHM or New Holdco. AHM has delivered to, or made available for review by, the Company true, correct and complete copies of (i) the three (3) most recent annual report on Form 5500 filed with the IRS with respect to each of its AHM Benefit Plans (if any such report was required), including post-retirement medical all schedules thereto, (ii) the most recently prepared actuarial report for each such AHM Benefit Plan for which such a report is required, (iii) the most recent summary plan description for each such AHM Benefit Plan for which such summary plan description is required, and life insuranceall summaries of material modifications distributed since the most recent summary plan description, (iv) the most recently received IRS determination letter for each such AHM Benefit Plan for which a determination letter has been received, and (v) the most recent trust agreement (if any) and fringe group annuity contract (if any) relating to any such AHM Benefit Plan. Neither AHM, New Holdco nor any Commonly Controlled Entity presently sponsors, maintains, contributes to, is required to contribute to, nor has AHM, New Holdco or any Commonly Controlled Entity, in the past three (3) years, ever sponsored, maintained, contributed to, or been required to contribute to, any employee pension benefit plans (whether or not plan subject to ERISA) maintained Title IV or sponsored by Section 302 of ERISA or Section 412 of the Company or its subsidiaries or Code, including, without limitation, any trade or business, whether or not incorporated, that would be deemed a "single employer" multiemployer plan within the meaning of Section 4001 3(37) or 4001(a)(3) of ERISA or Section 412 of the Code.
(an "b) The AHM Benefit Plans have been administered in accordance with their respective terms in all material respects. AHM and all such AHM Benefit Plans are in material compliance with all applicable provisions of ERISA Affiliate"and the Code.
(c) All of the AHM Benefit Plans intended to be qualified under Section 401(a) of the Code have been the subject of determination letters from the IRS to the effect that such AHM Benefit Plans are qualified and exempt from federal income taxes under Sections 401(a) and 501(a), for the benefit of any employee or former employee respectively, of the Company or any Code and no such determination letter has been revoked nor, to the knowledge of its ERISA Affiliates (the "Plans") isAHM, and has revocation been threatened. No AHM Benefit Plan has been operated in accordance with any respect that reasonably could result in its terms disqualification or been amended since the date of its most recent determination letter or application therefor in any respect that reasonably could result in its disqualification or materially increase its costs.
(d) None of AHM, New Holdco or any officer of either of them or any of the AHM Benefit Plans which are subject to ERISA, any trusts created thereunder or, to the knowledge of AHM, any trustee or administrator thereof, has engaged in a non-exempt "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject AHM or New Holdco or any officer of either of them to tax or penalty under ERISA, the Code or other applicable law that is material to the business of New Holdco and that has not been corrected. Neither any of such AHM Benefit Plans nor any of such trusts has been terminated.
(e) Except as set forth on Schedule 4.16(e) of the AHM Disclosure Schedule, the transactions contemplated by the Transaction Documents, either alone or upon the occurrence of any additional or further act or event, will not result in compliance any payment or an increase in the amount of compensation or benefits or accelerate the vesting, exercisability or timing of payment of any benefits payable to or in respect of any current or former employee, director, consultant or other independent contractor of AHM or New Holdco or the beneficiary or dependent of any such person or entity.
(including f) With respect to any of the making of governmental filingsAHM Benefit Plans that is an employee welfare benefit plan, (i) with all applicable Laws, including ERISA and the applicable provisions no such AHM Benefit Plan is funded through a "welfare benefit fund," as such term is defined in Section 419(e) of the Code, (ii) each such AHM Benefit Plan that is a "group health plan," as such term is defined in Section 5000(b)(1) of the Code, complies in all material respects with the applicable requirements of Section 4980B(f) of the Code and (iii) each such AHM Benefit Plan (including any such AHM Benefit Plan covering retirees or other former employees) may be amended or terminated without material liability to AHM or New Holdco.
(g) Except as disclosed on Schedule 4.16(g) of the AHM Disclosure Schedule, neither AHM nor New Holdco has any material unfunded liabilities pursuant to any AHM Benefit Plan that is not intended to be qualified under Section 401(a) of the Code and is an employee pension benefit plan within the meaning of Section 3(2) of ERISA, including, without limitation, any nonqualified deferred compensation plan or an excess benefit plan.
(h) No amounts payable (individually or collectively) under any of the AHM Benefit Plans or any other contract, agreement or arrangement with respect to which AHM or New Holdco may have any liability are reasonably expected to fail to be deductible for federal income tax purposes by virtue of Section 162(m) or Section 280G of the Code.
(i) Neither AHM, New Holdco nor any of their Commonly Controlled Entities has used the services of workers provided by third party contract labor suppliers, temporary employees, "leased employees" (as that term is defined in Section 414(n) of the Code), or individuals who have provided services as independent contractors under circumstances that could reasonably be expected to result in the disqualification of any of the AHM Benefit Plans or the imposition of penalties or excise taxes with respect to the AHM Benefit Plans by the IRS, the Department of Labor, or the Pension Benefit Guaranty Corporation in an amount which could reasonably result in material liability to AHM or New Holdco.
(j) Neither AHM, New Holdco nor any of their respective Subsidiaries are a party to any oral or written agreement or plan, including any AHM Benefit Plan, any of the benefits of which will be increases, or the vesting or exercisability of the benefits of which will be accelerated, by the occurrence of any of the Transactions or the Reorganization either alone or upon the occurrence of any additional or further acts or events or the value of any benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement either alone or upon the occurrence of any additional or further acts or events, except for failures such increases or accelerations that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse EffectEffect on AHM.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 2 contracts
Samples: Merger Agreement (American Home Mortgage Holdings Inc), Merger Agreement (Apex Mortgage Capital Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 6.11(a) of the Purchaser, (i) each "Illinova Disclosure Schedule lists all employee benefit plan" plans or arrangements of any type (as defined including plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA and all bonus plans, as amended ("ERISA"))stock option, stock purchase, restricted stock, incentive, deferred compensation, and all other employee benefitemployment, bonus, incentive, stock option (or other equity-based)termination, severance, change in controlor other arrangements), welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) sponsored, maintained or sponsored contributed to by the Company or its subsidiaries Illinova or any trade or business, whether or not incorporated, that which together with Illinova would be deemed a "single employer" within under Section 414(b), (c) or (m) of the meaning of Code or Section 4001 4001(b)(1) of ERISA (an "ILLINOVA ERISA AffiliateAFFILIATE") within six years prior to the Effective Time ("ILLINOVA BENEFIT PLANS"), for the benefit of any employee .
(b) With respect to each Illinova Benefit Plan: (i) if intended to qualify under Section 401(a) or former employee 401(k) of the Company or any Code, such plan satisfies the requirements of such sections, has received a favorable determination letter from the Internal Revenue Service with respect to its ERISA Affiliates (the "Plans") isqualification, and its related trust has been operated determined to be exempt from tax under Section 501(a) of the Code and, to Illinova's knowledge, nothing has occurred since the date of such letter to adversely affect such qualification or exemption; (ii) each such plan has been administered in accordance substantial compliance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Codelaw, except for failures any noncompliance with respect to any such plan that would not, individually or could not reasonably be expected to result in the aggregate, have a Company an Illinova Material Adverse Effect, ; (iiiii) each (x) as of the Plans intended date hereof, neither Illinova nor any Illinova ERISA Affiliate has engaged in, and Illinova and each Illinova ERISA Affiliate do not have any knowledge of any Person that has engaged in, any transaction or acted or failed to act in any manner that would subject Illinova or any Illinova ERISA Affiliate to any liability for a breach of fiduciary duty under ERISA in excess of $1,000,000; and (y) neither Illinova nor any Illinova ERISA Affiliate has engaged in, and Illinova and each Illinova ERISA Affiliate do not have any knowledge of any Person that has engaged in, any transaction or acted or failed to act in any manner that would subject Illinova or any Illinova ERISA Affiliate to any liability for a breach of fiduciary duty under ERISA that could reasonably be "qualified" within expected to result in an Illinova Material Adverse Effect; (iv) no disputes or Actions are pending, or, to the meaning knowledge of Illinova or any Illinova ERISA Affiliate, threatened that could reasonably be expected to result in a material liability that would have an Illinova Material Adverse Effect; (v) neither Illinova nor any Illinova ERISA Affiliate has engaged in, and Illinova and each Illinova ERISA Affiliate does not have any knowledge of any Person that has engaged in, any transaction in violation of Section 401(a406(a) or (b) of ERISA or Section 4975 of the Code for which no exemption exists under Section 408 of ERISA or Section 4975(c) of the Code has or Section 4975(d) of the Code that could reasonably be expected to result in an Illinova Material Adverse Effect; (vi) there have been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event,events" as such term is defined in under Section 4043(c) 4043 of ERISA (for which the 30-30 day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") of ERISA has not been waived)waived by the PBGC; (vii) all contributions due have been made on a timely basis (within, has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person whichwhere applicable, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in time limit established under Section 302 of ERISA or Code Section 412 412); (viii) no notice of the Codeintent to terminate such plan has been given under Section 4041 of ERISA and no Action has been instituted under Section 4042 of ERISA to terminate such plan; (ix) except for defined benefit plans (if applicable), whether or not waived such plan may be terminated on a prospective basis without any continuing liability for benefits other than benefits accrued to the date of such termination; and (iix) neither the Company Illinova nor any Illinova ERISA Affiliate has incurred any liability under Title IV of ERISA except for other than liabilities that would not cause an Illinova Material Adverse Effect. All contributions made or required premium payments to the PBGC, which payments be made under any Illinova Benefit Plan have been made when dueon or before their required due date and all such contributions meet the requirements for 42 44 deductibility under the Code, and no events have occurred all contributions which are reasonably likely to give rise to any liability required and which have not been made have been properly recorded on the books of the Company Illinova or an Illinova ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse EffectAffiliate.
(c) With No Illinova Benefit Plan is a "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) or a "multiple employer plan" (within the meaning of Section 413(c) of the Code). No event has occurred with respect to each Illinova or an Illinova ERISA Affiliate which could subject Illinova to any liability or Lien with respect to any Illinova Benefit Plan that is subject or any employee benefit plan described in Section 3(3) of ERISA maintained, sponsored or contributed to Title IV of ERISA, (i) by an Illinova ERISA Affiliate under ERISA or the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse EffectCode.
(d) Neither Except as listed in Section 6.11(d) of the Company nor Illinova Disclosure Schedule, no employee of Illinova or any ERISA Affiliate has failed to make of its Subsidiaries is covered by any contribution severance plan or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effectsimilar arrangement.
(e) Except as provided for listed in this Agreement or as disclosed in the Disclosure Letter, the consummation Section 6.11(e) of the transactions contemplated by this Agreement will not (iIllinova Disclosure Schedule, none of the Illinova Benefit Plans that are "welfare plans," within the meaning of Section 3(1) entitle of ERISA, provides for any current benefits payable to or former on behalf of any employee or officer director after termination of employment or service, as the case may be, other than elective continuation required pursuant to Code Section 4980B or coverage which expires at the end of the Company or calendar month following such event. Each such plan that is a "group health plan" (as defined in Code Section 4980B(g)) has been operated in compliance with Code Section 4980B at all times, except for any ERISA Affiliate to severance pay, unemployment compensation or any other paymentnon-compliance that would not, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officerinsofar as reasonably can be determined could not give rise to an Illinova Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Dynegy Inc), Merger Agreement (Illinova Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 5.13 of the Purchaser, (i) GGP Disclosure Schedule includes a complete list of each "material employee benefit plan" (as defined in , program or policy providing benefits to any current or former employee, officer, director or member of GGP or any the GGP Subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by GGP or any GGP Subsidiaries or to which GGP or any GGP Subsidiaries contributes or is obligated to contribute, including any employee welfare benefit plan within the meaning of Section 3(33(1) of the Employee Retirement Income Security Act of 1974, as amended amended, and the regulations promulgated thereunder ("ERISA")), and all other ) any employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe pension benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" plan within the meaning of Section 4001 3(2) of ERISA (an whether or not such plan is subject to ERISA) and any material bonus, incentive, deferred compensation, vacation, stock purchase, stock option, severance, employment, change of control or fringe benefit agreement, plan, program or policy (collectively, the "ERISA AffiliateGGP PLANS").
(b) With respect to each GGP Plan, for the benefit of any employee GGP has delivered or former employee of made available to the Company or any of its ERISA Affiliates representatives true, correct and complete copy of: (i) all plan documents and trust agreements; (ii) the "Plans"most recent Annual Report (Form 5500 Series) isand accompanying schedule, if any; (iii) the current summary plan description, if any; (iv) the most recent annual financial report, if any; (v) the most recent actuarial report, if any; and has been operated in accordance with its terms and in compliance (including vi) the making of governmental filingsmost recent determination letter from the IRS, if any.
(c) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that Except as would not, individually or in the aggregate, not reasonably be expected to have a Company GGP Material Adverse Effect, (ii) the IRS has issued a favorable determination letter with respect to each of the Plans GGP Plan that is intended to be "qualified" qualified within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") and its related trust that has not been waived)revoked, has occurred with respect and, to any Plan that is subject to Title IV the knowledge of ERISA which presents a risk of liability to any governmental entity or other person whichGGP, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, circumstances or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events that have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could that would reasonably be anticipated expected to result in any claims being made against Purchaser by the PBGC, in any a revocation of such caseletter, which presents cannot be cured without a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company GGP Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed Except as would not reasonably be expected to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company GGP Material Adverse Effect: (i) GGP and the GGP Subsidiaries have complied, and are now in compliance, with all provisions of ERISA, the Code and all laws and regulations applicable to the GGP Plans and each GGP Plan has been administered in all material respects in accordance with its terms; (ii) none of GGP and the GGP Subsidiaries nor, to the knowledge of GGP, any other person, including any fiduciary, has engaged in any "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the GGP Plans or their related trusts, GGP or any the GGP Subsidiaries, to any tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA; (iii) there are no pending or, to GGP's knowledge, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations that have been asserted or instituted against the GGP Plans that could reasonably be expected to result in any liability of GGP or any of the GGP Subsidiaries to any GGP Plan participant, to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any Multiemployer Plan or any GGP Plan.
(e) Except as provided for set forth in Section 5.13 of the GGP Disclosure Schedule, neither the execution and delivery of this Agreement or as disclosed in the Disclosure Letter, nor the consummation of the transactions contemplated by this Agreement will not hereby shall (i) entitle any current either alone or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or in conjunction with any other paymentevent) result in, cause the accelerated vesting, funding or (ii) accelerate the time of payment or vesting delivery of, or increase the amount or value of, any material payment or benefit to any employee, officer, director or member of compensation due GGP or any such employee of the GGP Subsidiaries.
(f) No GGP Plan is a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA (a "MULTIEMPLOYER PLAN") and none of GGP nor any of the GGP Subsidiaries has, at any time since October 1, 1998, contributed to or officerbeen obligated to contribute to any Multiemployer Plan.
Appears in 2 contracts
Samples: Merger Agreement (First Union Real Estate Equity & Mortgage Investments), Agreement and Plan of Merger and Contribution (Gotham Partners Lp /Ny/)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Schedule 4.12(a) of the Purchaser, (i) Company Disclosure Schedule includes a complete list of each "material employee benefit plan" (as defined in , program or policy providing benefits to any current or former employee, officer, director or independent contractor of the Company or any of its subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by the Company or any of its subsidiaries or to which the Company or any of its subsidiaries contributes or is obligated to contribute, including without limitation any employee welfare benefit plan within the meaning of Section 3(33(1) of the Employee Retirement Income Security Act of 1974, as amended amended, and the regulations promulgated thereunder ("ERISA")), any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and all other employee benefit, any material bonus, incentive, deferred compensation, vacation, stock purchase, stock option (or other equity-basedincluding the Company Option Plan), severance, employment, consulting, change in controlof control or fringe benefit agreement, welfare plan, program or policy (including post-retirement medical collectively, the "COMPANY PLANS"). The Company has no commitment or obligation to establish or adopt any new or additional material Company Plans or to materially increase the benefits under any existing Company Plan.
(b) With respect to each Company Plan, the Company has delivered or made available to Parent a true, correct and life insurancecomplete copy of: (i) all plan documents and trust agreements; (ii) the most recent Annual Report (Form 5500 Series) and fringe benefit plans accompanying schedule, if any; (whether iii) the current summary plan description, if any; (iv) the most recent annual financial report, if any; (v) the most recent actuarial report, if any; and (vi) the most recent determination letter from the IRS, if any.
(c) Except as would not reasonably be expected to have a Material Adverse Effect, the IRS has issued a favorable determination or opinion letter with respect to each Company Plan that is intended to be qualified within the meaning of Section 401(a) or 501(c)(9) of the Code and its related trust that has not been revoked, and, to the knowledge of the Company, there are no circumstances or events that have occurred that would reasonably be expected to result in a revocation of such letter, which cannot be cured without a Material Adverse Effect.
(d) Except as would not reasonably be expected to have a Material Adverse Effect: (i) the Company and its subsidiaries have complied, and are now in compliance, with all provisions of ERISA, the Code and all laws and regulations applicable to the Company Plans and each Company Plan has been administered in all material respects in accordance with its terms; (ii) none of the Company and any its subsidiaries nor, to the knowledge of the Company, any other person, including any fiduciary, has engaged in any "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject to ERISA) maintained any of the Company Plans or sponsored by their related trusts, the Company or any of its subsidiaries subsidiaries, to any tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA; (iii) no reportable event, within the meaning of Section 4043(c) of ERISA, has occurred with respect to any Company Plan or any plan sponsored by a trade or business, whether or not incorporated, that would under common control or treated as a single employer with the Company under Sections 414(b), (c) or (m) of the Code (an "ERISA AFFILIATE PLAN") for which the notice requirement has not been waived; (iv) all contributions required to be deemed a made under the terms of any Company Plan have been timely made; (v) no Company Plan or ERISA Affiliate Plan has an "single employeraccumulated fending deficiency" (within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) 412 of the Code has been determined by the Internal Revenue Service to be so qualifiedor Section 302 of ERISA), whether or not waived; (iiivi) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement all premiums to the Pension Benefit Guaranty Corporation ("PBGC") has not have been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of timely paid in full; (vii) no liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefitspremiums to the PBGC) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments has been or is expected to be incurred by the Company or with respect to an ERISA Affiliate Plan; and (viii) there are no pending or, to the PBGCCompany's knowledge, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which payments have been made when due, and no events have occurred asserted or instituted against the Company Plans which are could reasonably likely be expected to give rise to result in any liability of the Company or an ERISA Affiliate under Title IV any of ERISA or which could reasonably be anticipated its subsidiaries to result in any claims being made against Purchaser by Company Plan participant, to the PBGC, in the Department of Treasury, the Department of Labor, any such case, which presents a risk of liability which would, individually Multiemployer Plan or in the aggregate, have a any Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in Neither the execution and delivery of this Agreement or as disclosed in the Disclosure Letter, nor the consummation of the transactions contemplated by this Agreement hereby will not (ieither alone or in conjunction with any other event) entitle result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any current material payment or former employee benefit to any employee, officer or officer director of the Company or any of its subsidiaries.
(f) No Company Plan or ERISA Affiliate Plan is a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA (a "MULTIEMPLOYER PLAN") and none of the Company nor any of its subsidiaries has at any time since March 5, 1998 contributed to severance pay, unemployment compensation or been obligated to contribute to any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officerMultiemployer Plan.
Appears in 2 contracts
Samples: Merger Agreement (Reliant Resources Inc), Merger Agreement (Orion Power Holdings Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and described in the PurchaserCompany SEC Reports or as would not have a Material Adverse Effect on the Company, (i) all Company Employee Benefit Plans (as hereinafter defined) are in compliance with all applicable requirements of law, including ERISA (as hereinafter defined) and the Code, and (ii) neither the Company nor any of its Subsidiaries nor any ERISA Affiliate (as hereinafter defined) has any liabilities or obligations with respect to any such Company Employee Benefit Plans, whether accrued, contingent or otherwise, nor to the best knowledge of the Company, are any such liabilities or obligations expected to be incurred. Except as described in the Company SEC Reports or as set forth in Section 3.8(a) of the Company Disclosure Schedule, the execution of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Company Employee Benefit Plan that will or may result in any payment or any continuation benefit under COBRA (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee. The only severance agreements or severance policies applicable to the Company or any of its Subsidiaries are the agreements and policies specifically described in Section 3.8(a) of the Company Disclosure Schedule.
(b) With respect to each of its Plans (as hereinafter defined), the Company has heretofore delivered to the Parent complete and correct copies of each of the following documents, as applicable: (i) a copy of the Plan; (ii) a copy of the most recent annual report; (iii) a copy of the most recent actuarial report; (iv) a copy of the most recent Summary Plan Description and all material modifications; (v) a copy of the trust or other funding agreement; and (vi) the most recent determination letter received from the Internal Revenue Service (the "IRS") with respect to each Plan that is intended to be qualified under Section 401 of the Code and all notices of reportable events received following receipt of such letter.
(c) Section 3.8(c) of the Company Disclosure Schedule sets forth a list of each employee benefit planof the Company (or any Subsidiary) who is a party to any agreement (whether written or oral) with respect to such person's employment by the Company or a Subsidiary, other than offer letters which do not have guaranteed periods of employment and statutory employment agreements under foreign laws, and which provide for annual compensation in excess of $100,000. The Company has provided to the Parent a complete and correct copy of each such written employment agreement and a complete and correct summary of each such oral agreement.
(d) No liability under Title IV of ERISA has been incurred by the Company or any ERISA Affiliate within the past twelve years that has not been satisfied in full. To the best knowledge of the Company, no condition exists that presents a material risk to the Company, any of its Subsidiaries or any ERISA Affiliate of incurring a liability under such Title. The Pension Benefit Guaranty Corporation established under ERISA ("PBGC") has not instituted proceedings to terminate any of the Plans, and no condition exists that presents a material risk that such proceedings will be instituted. With respect to each of the Plans that is subject to Title IV of ERISA, the present value of accrued benefits under such Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Plan's actuary with respect to such Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Plan allocable to such accrued benefits, and there have been no changes since such latest valuation date which would cause the present value of such accrued benefits to exceed the current value of such assets. None of the Plans or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in Section 3(3) 302 of ERISA and Section 412 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"Code)), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporatedwaived, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee as of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions last day of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) most recent fiscal year of each of the Plans ended prior to the date of this Agreement. None of the Plans is a "multiemployer plan," as such term is defined in Section 3(37) of ERISA. Each of the Plans that is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by is so qualified and the Internal Revenue Service to be so qualified, (iiitrusts maintained thereunder are exempt from taxation under Section 501(a) no "reportable event," of the Code. Except as such term is defined set forth in Section 4043(c3.8(d) of ERISA the Company Disclosure Schedule, no Plan provides benefits, including without limitation death or medical benefits (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has whether or not been waivedinsured), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity current or former employees after retirement or other person whichtermination of service (other than coverage mandated by applicable law or benefits, individually the full cost of which is borne by the current or in the aggregate, would have a Company Material Adverse Effect, and (iv) there former employee). There are no pendingpending or threatened claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or to the Company's knowledge threatened, claims otherwise involving any such Plan (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for As used in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Alumax Inc), Merger Agreement (Aluminum Co of America)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 2.9(a) of the Purchaser, Company Disclosure Letter sets forth a list of (i) each "all employee benefit plan" plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)), all material employment agreements (which will include any employment agreement that provides for severance, change of control or retention benefits or includes material notice or pay-in-lieu of notice provisions), and all other employee benefit, material bonus, incentiveincentive compensation, stock option (deferred compensation, change-in-control, severance pay, option, phantom unit, or other equity-based)based compensation, severanceretention, change in controlor fringe plans, welfare programs, arrangements, or agreements (including post-retirement medical and life insuranceA) and fringe benefit plans to which the Company or any Subsidiary is a party, (whether or not subject B) that are maintained, contributed to ERISA) maintained or sponsored by the Company or its subsidiaries or by any trade or business, whether or not incorporatedincorporated (an “ERISA Affiliate”), that which together with the Company would be deemed a "“single employer" ” within the meaning of Section 4001 section 4001(b)(15) of ERISA (an "ERISA Affiliate"), for the benefit of and under which any employee current or former employee or consultant or independent contractor of the Company (or any of its ERISA Affiliates their respective beneficiaries) has any present or future right to benefits, or (C) under which the Company has any direct or indirect liability, whether contingent or otherwise, with respect to any current or former employee or consultant or independent contractor (or any of their respective beneficiaries) (“Benefit Plans”). True and complete copies of all Benefit Plans, including all amendments to date, have been made available to Parent by the Company.
(b) With respect to each Benefit Plan: (i) if intended to qualify under section 401(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Plans"“Code”), such plan has received a determination letter from the Internal Revenue Service stating that it so qualifies and that its trust is exempt from taxation under section 501(a) is, of the Code and nothing has occurred since the date of such determination that could adversely affect such qualification or exempt status; (ii) such plan has been operated administered in all material respects in accordance with its terms and in compliance applicable Law; (including iii) no breaches of fiduciary duty have occurred which might reasonably be expected to give rise to material liability on the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions part of the CodeCompany; (iv) no disputes are pending, except for failures that would notor, individually or in to the aggregate, have a Company Material Adverse Effect, (ii) each Knowledge of the Plans intended Company, threatened that give rise to or might reasonably be "qualified" expected to give rise to material liability on the part of the Company; and (v) no prohibited transaction (within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning 406 of ERISA) has occurred that give rise to or might reasonably be expected to give rise to material liability on the part of the Company.
(c) No Benefit Plan is, and neither the Company nor any ERISA Affiliate has ever previously or currently maintains, contributes to, or participates in, nor does the Company or any ERISA Affiliate ever contributed have any obligation to maintain, contribute to, or been required to contribute to otherwise participate in, or have any multiemployer plan.
liability or other obligation (whether accrued, absolute, contingent, or otherwise) under, any (i) No Plan has incurred an "accumulated fund deficiency" “multiemployer plan” (as defined in within the meaning of Section 302 3(37) of ERISA), (ii) “multiple employer plan” (within the meaning of Section 413(c) of the Code), (iii) “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA), (iv) plan that is subject to the provisions of Title IV of ERISA or Section 412 of the Code), whether or not waived and (iiv) neither a “funded welfare plan” within the Company nor any ERISA Affiliate has incurred any liability under Title IV meaning of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability Section 419 of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse EffectCode.
(d) Neither the Company nor any ERISA Affiliate has failed Subsidiaries have sponsored, maintained, administered, contributed to, had any obligation to make contribute to, nor incurred any contribution other material liability under or payment with respect to any Benefit Plan which has resulted or could result in the imposition of a lien or the posting of a bond provides health, life or other security under ERISA coverage for former employees (or any spouse or former spouse or other dependent thereof), other than benefits required by Section 4980B of the Code which would have a Company Material Adverse EffectCode, Part 6 of Title I of ERISA, or similar state Laws.
(e) Except as provided disclosed in Section 2.9(e) of the Company Disclosure Letter, no amounts payable under the Benefit Plans will fail to be deductible for in this Agreement or federal income tax purposes by virtue of section 280G of the Code. Except as disclosed in Section 2.9(e) of the Company Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not not, either alone or in combination with another event, (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, except as expressly provided in this Agreement, or (ii) accelerate the time of payment or vesting vesting, or increase the amount of compensation due any such employee or officer. There is no written or unwritten agreement, arrangement, or other contract by which the Company or any of its Subsidiaries is bound to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(f) Each “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has been operated since January 1, 2009 in good faith compliance with Section 409A of the Code (together with the guidance and regulations thereunder, including the final Treasury Regulations issued thereunder, “Section 409A”) and has been, since January 1, 2009, in documentary and operational compliance with Section 409A. There is no contract, agreement, plan, or arrangement to which the Company or any of its ERISA Affiliates is a party, including the provisions of this Agreement, covering any current or former employee or consultant or independent contractor (or any of their respective beneficiaries), which individually or collectively could require the Company or any of its Subsidiaries to pay a tax gross-up payment to any person for tax-related payments under Section 409A.
(g) With respect to each Benefit Plan subject to the laws other than those of the United States (each, a “Foreign Company Plan”), (i) each such Foreign Company Plan required to be registered has been registered and, to the Knowledge of the Company, no fact or event has occurred that would adversely affect such registration, (ii) each such Foreign Company Plan required to be funded and/or book reserved is funded and/or book reserved, as appropriate, in accordance with applicable Law, and (iii) the fair market value of the assets of each funded Foreign Company Plan, the liability of the insurers for each such Foreign Company Plan funded through insurance or the book reserve established for each such Foreign Company Plan which is required to be book reserved, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current or former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Company Plan and, to the Knowledge of the Company, no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be materially less than such benefit obligations.
Appears in 2 contracts
Samples: Merger Agreement (Lindsay Corp), Merger Agreement (Elecsys Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent set forth in the Representing Party's SEC Reports or as would not have a Material Adverse Effect on the Representing Party and the Purchaserits Subsidiaries, taken as a whole, (i) each "employee benefit plan" all Employee Benefit Plans (as defined in Section 3(3) of the other than any Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, Benefit Plan that would be deemed is a "single employermultiemployer plan" within the meaning of Section 4001 3(37) of ERISA (an a "ERISA AffiliateMultiemployer Plan"), for the benefit of any employee or former employee ) of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated Representing Party are in accordance with its terms and in material compliance (including the making of governmental filings) with all applicable Lawsrequirements of Law, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company Representing Party nor any of its Subsidiaries nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments liabilities or obligations with respect to any such Employee Benefit Plans, whether accrued, contingent or otherwise, that are not otherwise reflected on the Representing Party's financial statements, nor to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability best knowledge of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGCRepresenting Party, in are any such case, which presents a risk of liability which would, individually liabilities or obligations expected to be incurred. Except as described in the aggregate, have a Company Material Adverse Effect.
Representing Party's (cor any of its Subsidiaries') With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits SEC Reports or as set forth in Section 4.7(a) of the most recent actuarial valuation report prepared by Representing Party's Disclosure Schedule, the Plan's actuary fairly presented the funded status of such Plan in all material respectsexecution and delivery of, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation performance of the transactions contemplated by this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Employee Benefit Plan of the Representing Party that will or may result in acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee. The only severance agreements or severance policies applicable to the Representing Party or any of its Subsidiaries are the agreements and policies specifically described in Section 4.7(a) of the Representing Party's Disclosure Schedule.
(b) With respect to each of its Plans, the Representing Party has heretofore made available to the other Representing Party complete and correct copies of each of the following documents, as applicable: (i) entitle any current or former employee or officer a copy of the Company or Plan and any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or amendments thereto; (ii) accelerate a copy of the time most recent annual report; (iii) a copy of payment the most recent actuarial report; (iv) a copy of the most recent Summary Plan Description and all material modifications; (v) a copy of the trust or vesting other funding agreement and any amendments thereto; and (vi) the most recent determination letter received from the Internal Revenue Service (the "IRS") with respect to each Plan that is intended to be qualified under Section 401 of the Code and all notices of reportable events received following receipt of such letter. Each Representing Party will deliver to the other Representing Party a copy of each Foreign Plan within thirty days following the date hereof.
(c) Section 4.7(c) of the Representing Party's Disclosure Schedule sets forth a list of each employee of the Representing Party (or increase any Subsidiary) who is a party to any agreement (whether written or oral) with respect to such person's employment by the amount of compensation due any such employee Representing Party or officer.a Subsidiary, other than offer letters which do not have guaranteed periods
Appears in 2 contracts
Samples: Merger Agreement (Cyprus Amax Minerals Co), Merger Agreement (Phelps Dodge Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Section 4.10(a)(1) of the Parent Disclosure Letter contains a true and complete list of all the Purchaser, (i) each "individual or group employee benefit plan" plans or arrangements of any type (as defined including plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefitsponsored, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored contributed to by the Company or its subsidiaries Parent or any trade or business, whether or not incorporated, that which together with Parent would be deemed a "“single employer" ” within the meaning of Section 4001 414(b), (c) or (m) of the Code or Section 4001(b)(1) of ERISA (an "a “Parent ERISA Affiliate"”) (“Parent Benefit Plans”), for the benefit of any employee or former employee and Section 4.10(a)(2) of the Company Parent Disclosure Letter lists each material individual employment, severance or similar agreement with respect to which Parent or any Parent ERISA Affiliate has any current or future obligation or liability (“Parent Employee Agreement”). With respect to each Parent Benefit Plan, Parent has made available to the Company a true, correct and complete copy of its ERISA Affiliates such Parent Benefit Plan, and, to the extent applicable, trust agreements, insurance contracts and other funding vehicles, the most recent Annual Reports (the "Plans"Form 5500 Series) isand accompanying schedules, summary pan descriptions, and the most recent determination letter from the Internal Revenue Service.
(b) With respect to each Parent Benefit Plan (i) if intended to qualify under Section 401(a) or 401(k) of the Code, such Parent Benefit Plan satisfies the requirements of such sections and has received a favorable determination letter from the Internal Revenue Service (or has a determination letter application pending with the Internal Revenue Service) with respect to its qualification, and (except for any such plan with respect to which a determination letter application is pending with the Internal Revenue Service) its related trust has been operated determined to be exempt from tax under Section 501(a) of the Code and, to the knowledge of Parent, nothing has occurred since the date of such letter to adversely affect such qualification or exemption; (ii) each Parent Benefit Plan has been administered in accordance substantial compliance with its terms and applicable Law, except for any noncompliance with respect to any such plan that could not reasonably be expected to result in compliance a Material Adverse Effect on Parent; (including iii) neither Parent nor any Parent ERISA Affiliate has engaged in, and Parent and each Parent ERISA Affiliate do not have any knowledge of any Person that has engaged in, any transaction or acted or failed to act in any manner that would subject Parent or any Parent ERISA Affiliate to any liability for a breach of fiduciary duty under ERISA that could reasonably be expected to result in a Material Adverse Effect on Parent; (iv) no disputes are pending or, to the making knowledge of governmental filingsParent or any Parent ERISA Affiliate, threatened other than ordinary claims for benefits; (v) with neither Parent nor any Parent ERISA Affiliate has engaged in, and Parent and each Parent ERISA Affiliate do not have any knowledge of any Person that has engaged in, any transaction in violation of Section 406(a) or (b) of ERISA or Section 4975 of the Code for which no exemption exists under Section 408 of ERISA or Section 4975(c) of the Code or Section 4975(d) of the Code that could reasonably be expected to result in a Material Adverse Effect on Parent; (vi) all applicable Lawscontributions due have been made on a timely basis; and (vii) except for defined benefit plans (if applicable), including ERISA and such Parent Benefit Plan may be terminated on a prospective basis without any continuing liability for benefits other than benefits accrued to the applicable provisions date of such termination. All contributions made or required to be made under any Parent Benefit Plan meet the requirements for deductibility under the Code, except and all contributions which are required and which have not been made have been properly recorded on the books of Parent or a Parent ERISA Affiliate.
(c) No Parent Benefit Plan (including for failures that would notsuch purpose, individually any employee benefit plan described in Section 3(3) of ERISA which Parent or any Parent ERISA Affiliate maintained, sponsored or contributed to within the six-year period preceding the Merger I Effective Time) is (i) a “multiemployer plan” (as defined in the aggregate, have a Company Material Adverse EffectSection 4001(a)(3) of ERISA), (ii) each of the Plans intended to be "qualified" a “multiple employer plan” (within the meaning of Section 401(a413(c) of the Code has been determined by the Internal Revenue Service to be so qualified, Code) or (iii) no "reportable event," as such term is defined in Section 4043(cexcept for the Forest Oil Corporation Pension Plan and The Retirement Income Plan for Employees of The Wiser Oil Company (collectively, the “Title IV Plans”) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code). No event has occurred with respect to Parent or a Parent ERISA Affiliate in connection with which Parent could be subject to any liability, whether lien or encumbrance with respect to any Parent Benefit Plan, except for regular contributions and benefit payments in the ordinary course of plan business. With respect to each Title IV Plan, (i) Parent has made available to the Company the most recent actuarial report for such Title IV Plan, and there has been no material adverse change in the financial condition of such Title IV Plan from the date of such actuarial report to the date of this Agreement, (ii) there has been no “reportable event,” as that term is defined in Section 4043 of ERISA and the regulations thereunder, that would require the giving of notice or any event requiring disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA, (iii) all premiums due the Pension Benefit Guaranty Corporation (the “PBGC”) have been paid, neither Parent nor any Parent ERISA Affiliate has filed a notice of intent to terminate such Title IV Plan and has not waived adopted any amendment to treat such Title IV Plan as terminated, the PBGC has not instituted, or threatened to institute, proceedings to treat any such Title IV Plan as terminated and no event has occurred or circumstance exists that may constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, such Title IV Plan.
(d) Except as set forth in Section 4.10(d) of the Parent Disclosure Letter, (i) no present or former employees of Parent or any of its Subsidiaries are covered by any Parent Employee Agreements or Parent Benefit Plans that provide or will provide any severance pay, post-termination health or life insurance benefits (except as required pursuant to Section 4980B of the Code or Part 6 of Title I of ERISA) or any similar benefits, (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV execution of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, nor the consummation of the transactions contemplated by this Agreement will not (i) entitle shall cause any current payments or former employee benefits to any employee, officer or officer director of Parent or any of its Subsidiaries to be either subject to an excise Tax or non-deductible to Parent under Sections 4999 and 280G of the Company Code, respectively, whether or any ERISA Affiliate not some other subsequent action or event would be required to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of cause such payment or benefit to be triggered, and (iii) neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement shall result in, cause the accelerated vesting or delivery of, or increase the amount or value of, any payment or benefit to any employee, officer or director of compensation due Parent or any of its Subsidiaries, whether or not some other subsequent action or event would be required to cause such employee payment or officerbenefit to be triggered, accelerated, delivered or increased.
Appears in 2 contracts
Samples: Merger Agreement (Forest Oil Corp), Merger Agreement (Houston Exploration Co)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent Set forth on Schedule 3.19(a) is a true and the Purchasercomplete list of each deferred compensation, (i) executive compensation, incentive compensation, stock purchase or other stock-based compensation plan, employment or consulting, severance or termination pay, holiday, vacation or other bonus plan or practice, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit sharing, pension, or retirement plan, program, agreement, commitment or arrangement, and each "other employee benefit plan" (, program, agreement or arrangement, including, without limitation, each “employee benefit plan” as such term is defined in under Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored contributed to or required to be contributed to by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former terminated employee of the Company, or with respect to which Company has any liability, whether direct or any of its ERISA Affiliates (the "Plans") isindirect, actual or contingent, whether formal or informal, and has whether legally binding or not (collectively, the “Benefit Plans”).
(b) With respect to each Benefit Plan, there are no unfunded benefit obligations that have not been operated accounted for by reserves, or otherwise properly footnoted in accordance with its terms GAAP on the Financial Statements. Company is not and has not in the past been a member of a “controlled group” for purposes of Section 414(c) of ERISA, nor does Company have any liability with respect to any collectively-bargained for plans subject to the provisions of ERISA.
(c) Each Benefit Plan is in compliance (including the making of governmental filings) with all applicable Laws, including including, without limitation, ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans . Each Benefit Plan which is intended to be "“qualified" ” within the meaning of Section 401(a) of the Code (i) has been determined by the Internal Revenue Service IRS to be so qualified (or is based on a prototype plan which has received a favorable determination letter) during the period from its adoption to the date of this Agreement and (ii) its related trust has been determined to be exempt from taxation under Code Section 501(a) or Company has requested an initial favorable IRS determination of qualification and/or exemption. None of Company or any of Sellers knows of any fact which would adversely affect the qualified status of such Benefit Plans or the exempt status of such trusts, and Company has received a favorable IRS determination as to the qualified status of each such Benefit Plan with respect to the Tax Reform Act of 1986 and subsequent amendments to the Code. The preceding sentence does not apply to any deferred compensation plan or incentive compensation plan, which are not intended to be and are not “qualified” plans.
(d) With respect to each Benefit Plan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of Company, Sellers have delivered or made available (or have caused Company to have delivered or made available) to Purchaser accurate and complete copies, if applicable, of: (i) all Benefit Plan texts and agreements and related trust agreements or annuity contracts; (ii) all summary plan descriptions and material modifications thereto; (iii) the most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the most recent determination letter received from the IRS; (vi) the most recent actuarial valuation; and (vii) all communications with any Governmental Authority.
(e) With respect to each Benefit Plan: (i) such Benefit Plan has been administered and enforced in accordance with its terms, the Code and ERISA; (ii) no breach of fiduciary duty has occurred; (iii) no "reportable event," dispute is pending, or to the Knowledge of any of Sellers or Company, threatened; (iv) no prohibited transaction, as such term is defined in Section 4043(c) 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (for which v) all contributions and premiums due through the 30-day notice requirement Closing Date have been made as required under ERISA or have been fully accrued on the Financial Statements.
(f) At no time has the Company maintained or participated in or been required to the Pension Benefit Guaranty Corporation contribute to a “defined benefit plan” ("PBGC") has not been waivedas defined in Code Section 414(j)), has occurred with respect to any Plan that is a “multiemployer plan” (as defined in ERISA Section 3(37)) or a “multiple employer plan” (as described in Code Section 413(c)) or other plan or arrangement subject to Title IV of ERISA which presents or Code Section 412. No Benefit Plan will become a risk of liability multiple employer plan with respect to Company immediately after the Closing Date.
(g) There is no arrangement under any Benefit Plan with respect to any governmental entity or other person which, individually or employee that would result in the aggregatepayment of any amount that by operation of Code Section 280(G) or 162(m) would not be deductible by Company.
(h) With respect to each Benefit Plan which is a “welfare plan” (as described in ERISA Section 3(1)): (i) no such plan provides medical or death benefits with respect to current or former employees of Company beyond their termination of employment (other than coverage mandated by law, would have a Company Material Adverse Effect, which is paid solely by such employees); and (ivii) there are no pendingreserves, assets, surplus or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, prepaid premiums under any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer such plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letteron Schedule 3.19(i), the consummation of the transactions contemplated by this Agreement and the other Transaction Documents will not not: (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate individual to severance pay, unemployment compensation or any other payment, benefits or compensation; (ii) accelerate the time of payment or vesting vesting, or increase the amount of any compensation due due, or in respect of, any such employee individual; (iii) result in or officersatisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Code section 280G(b)(1); or (iv) constitute or involve a prohibited transaction (as defined in ERISA Section 406 or Code Section 4975), or constitute or involve a breach of fiduciary responsibility within the meaning of ERISA section 502(l) or otherwise violate Part 4 of Subtitle B of Title I of ERISA.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Analex Corp), Stock Purchase Agreement (Analex Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each Each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentivedeferred compensation, stock share option (or other equity-based)written agreement relating to employment or fringe benefits for employees, severanceformer employees, change in controlofficers, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether trustees or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning directors of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company EUA or any of its ERISA Affiliates Subsidiaries effective as of the date hereof or providing benefits as of the date hereof to current employees, former employees, officers, trustees or directors of EUA or pursuant to which EUA or any of its subsidiaries has or could reasonably be expected to have any liability (collectively, the "EUA Employee Benefit Plans") isis listed in Section 4.11(a) of the EUA Disclosure Letter, is in material compliance with applicable law, and has been administered and operated in all material respects in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans terms. Each EUA Employee Benefit Plan which is intended to be "qualified" qualified within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to such qualification and, to the knowledge of EUA, no event has occurred and no condition exists which could reasonably be expected to result in the revocation of, or have any adverse effect on, any such determination.
(b) Complete and correct copies of the following documents have been determined by made available to NEES as of the Internal Revenue Service date ox xxis Agreement: (i) all EUA Employee Benefit Plans and any related trust agreements or insurance contracts, (ii) the most current summary descriptions of each EUA Employee Benefit Plan subject to be so qualifiedERISA, (iii) the three most recent Form 5500s and Schedules thereto for each EUA Employee Benefit Plan subject to such reporting, (iv) the most recent determination of the IRS with respect to the qualified status of each EUA Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code, (v) the most recent accountings with respect to each EUA Employee Benefit Plan funded through a trust and (vi) the most recent actuarial report of the qualified actuary of each EUA Employee Benefit Plan with respect to which actuarial valuations are conducted.
(c) Except as set forth in Section 4.11(c) of the EUA Disclosure Letter, neither EUA nor any Subsidiary maintains or is obligated to provide benefits under any EUA Employee Benefit Plan (other than as an incidental benefit under a Plan qualified under Section 401(a) of the Code) which provides health or welfare benefits to retirees or other terminated employees other than benefit continuations as required pursuant to Section 601 of ERISA. Each EUA Employee Benefit Plan subject to the requirements of Section 601 of ERISA has been operated in material compliance therewith. EUA has not contributed to a nonconforming group health plan (as defined in Code Section 5000(c)) and no person under common control with EUA within the meaning of Section 414 of the Code ("reportable eventERISA Affiliate") has incurred a tax liability under Code Section 5000(a) that is or could reasonably be expected to be a liability of EUA's.
(d) Except as set forth in Section 4.11(d) of the EUA Disclosure Letter, each EUA Employee Benefit Plan covers only employees who are employed by EUA or a Subsidiary (or former employees or beneficiaries with respect to service with EUA or a Subsidiary).
(e) Except as set forth in Section 4.11(e) of the EUA Disclosure Letter, neither EUA, any Subsidiary, any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, within the five- year period preceding the date of this Agreement, at any time contributed to any "multiemployer plan," as such that term is defined in Section 4043(c4001 of ERISA.
(f) No event has occurred, and there exists no condition or set of circumstances in connection with any EUA Employee Benefit Plan, under which EUA or any Subsidiary, directly or indirectly (through any indemnification agreement or otherwise), could be subject to any liability under Section 409 of ERISA, Section 502(i) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)ERISA, has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk or Section 4975 of liability to any governmental entity or other person the Code except for instances of non-compliance which, individually or in the aggregate, would could not reasonably be expected to have a Company an EUA Material Adverse Effect.
(g) Neither EUA nor any ERISA Affiliate has incurred any liability to the Pension Benefit Guaranty Corporation (the "PBGC") under Section 302(c)(ii), and (iv) there are no pending4062, 4063, 4064 or 4069 of ERISA, or otherwise that has not been satisfied in full and no event or condition exists or has existed which could reasonably be expected to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, result in any such material liability. As of the Plans or any trusts related thereto which woulddate of this Agreement, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a no "multiemployer planreportable event" (within the meaning of ERISA) nor Section 4043 of ERISA has the Company or any ERISA Affiliate ever contributed or been required to contribute occurred with respect to any multiemployer planEUA Employee Benefit Plan that is a defined benefit plan under Section 3(35) of ERISA.
(h) Except as set forth in Section 4.11(h) of the EUA Disclosure Letter, no employer securities, employer real property or other employer property is included in the assets of any EUA Employee Benefit Plan.
(i) No Full payment has been made of all material amounts which EUA or any affiliate thereof was required under the terms of EUA Employee Benefit Plans to have paid as contributions to such plans on or prior to the Effective Time (excluding any amounts not yet due) and no EUA Employee Benefit Plan which is subject to Part III of Subtitle B of Title I of ERISA has incurred an any "accumulated fund funding deficiency" (as defined in within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effectwaived.
(cj) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits Except as set forth in Section 4.11(j) of the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the EUA Disclosure Letter, the consummation no amounts payable under any EUA Employee Benefit Plan or other agreement, contract, or arrangement will fail to be deductible for federal income tax purposes by virtue of Section 280G or Section 162(m) of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officerCode.
Appears in 2 contracts
Samples: Merger Agreement (Eastern Utilities Associates), Merger Agreement (Eastern Edison Co)
Employee Benefit Plans; ERISA. (a1) Except as previously disclosed to Parent and Section 5.9(a) of the Purchaser, (i) Disclosure Letter lists each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other material employee benefitbenefit (including, without limitation, any non-qualified plans), bonus, deferred compensation, incentive, stock option (or other equity-based), severance, change in change-in-control, welfare (including post-retirement medical and life insurance) insurance and fringe benefit plans (whether maintained for the benefit of, or not subject contributed to ERISA) maintained or sponsored by the Company or its subsidiaries Seller or any trade or businessbusiness of the Seller, whether or not incorporatedincorporated (an "ERISA Affiliate"), that would be deemed a "single employer" within the meaning of Section 4001 of ERISA the Employee Retirement Income Security Act of 1974 (an "ERISA AffiliateERISA"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates Seller (the "Plans") is). The Seller has heretofore delivered to the Buyer true, correct and has been operated in accordance with its terms and in compliance (including complete copies of each of the making of governmental filings) with all applicable LawsPlans, including all amendments to date.
(2) Each of the Plans that is subject to ERISA complies with ERISA and the applicable provisions of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Code") and has been administered in accordance with ERISA and, except for failures that would notwhere applicable, individually or in the aggregateCode. There are no pending or, have a Company Material Adverse Effect, (ii) to the best knowledge of each of the Plans intended to be "qualified" within Seller and the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualifiedShareholder, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, threatened claims (other than routine claims for benefits) ), actions, suits or proceedings by, on behalf of or against, against any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. thereto.
(3) No Plan provides benefits including, without limitation, death or medical benefits (whether or not insured), with respect to any employees or former employees of the Seller beyond their retirement or other termination of service (other than (i) coverage mandated by applicable law, (ii) death benefits or retirement benefits under any "employee pension plan," as that term is defined in Section 3(2) of ERISA, or (iii) benefits the full cost of which is borne by the current or former employee (or his or her beneficiary)).
(4) The Seller has complied with the notice and continuation of coverage requirements of Section 4980B of the Code and the regulations thereunder with respect to each plan that is, or was during any taxable year of the Seller for which the statute of limitations on the assessment of federal income taxes remains open, by consent or otherwise, a "multiemployer plan" (group health plan within the meaning of ERISASection 4980B(g) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Medsource Technologies Inc), Asset Purchase Agreement (Image Guided Technologies Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed set forth on Schedule 2.20(a), with respect to Parent and current or former employees, officers, directors, independent contractors, or consultants of PPIC, PPIC does not sponsor, maintain, contribute, is not required to contribute to, or have any Liability with respect to any “pension plan” (as such term is defined under Section 3(2) of ERISA) (the Purchaser, “PPIC Pension Plans”); “welfare plan” (ias such term is defined under Section 3(1) each "of ERISA) (the “PPIC Welfare Plans”); or any material employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"))incentive compensation, and all other employee benefit, bonus, incentive, stock option (equity or other equity-based)based compensation, severancedeferred compensation, change in control, welfare retention, termination, supplemental retirement, or severance arrangements (including postthe “Material PPIC Non-retirement medical ERISA Plans”). The PPIC Pension Plans, the PPIC Welfare Plans, and life insurance) and fringe benefit plans (whether or not subject the Material PPIC Non-ERISA Plans are collectively referred to ERISA) maintained or sponsored by herein as the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee “PPIC Plans.” Each of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures PPIC Pension Plans that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans is intended to be "qualified" within the meaning of qualified under Section 401(a) of the Code has been determined by received a favorable determination letter from the Internal Revenue Service to be so qualified, (iiithe “IRS”) no "reportable event," as such term or is defined in Section 4043(c) of ERISA (for which a volume submitter or prototype plan that has received an opinion letter from the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, IRS and (iv) there are no pendingfacts or circumstances that would be reasonably likely to affect the qualified status of any such PPIC Pension Plans. The PPIC Plans comply in form and in operation, or to in all material respects, with the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any applicable requirements of the Plans or any trusts related thereto which wouldCode, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" ERISA (within the meaning of ERISAif applicable) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer planand all applicable Laws.
(ib) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments With respect to the PBGCPPIC Plans, which payments all required contributions, expenses or premiums have been timely made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGCproperly accrued, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effectaccordance with all applicable Laws.
(c) With respect to each Plan that is subject to Title IV of ERISAThe PPIC Plans have been established, (i) the Company has provided to Parent maintained and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereofadministered, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, in accordance with their respective terms and with all applicable provisions of ERISA (iii) since if applicable), the date of such valuation report there Code and other Laws, except where the failure to be so maintained and administered has been no adverse change not had and would not reasonably be expected to result in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse EffectEffect on PPIC.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for set forth in this Agreement or as disclosed in the Disclosure LetterSchedule 2.20(d), the consummation of the transactions contemplated by this Agreement hereby will not (i) result in an increase in or accelerate the vesting of any of the benefits available under any of the PPIC Plans, or (ii) otherwise entitle any current or former director or employee or officer of the Company or any ERISA Affiliate PPIC to severance pay, unemployment compensation pay or any other paymentpayment from PPIC. Except as may be required by Law, PPIC has not announced any type of plan or binding commitment to
(1) create any additional PPIC Plans, or (ii2) accelerate amend or modify any of the time of payment existing PPIC Plans with respect to any current or vesting former employee, independent contractor or increase the amount of compensation due any such employee or officerdirector.
Appears in 2 contracts
Samples: Exchange Agreement, Exchange Agreement
Employee Benefit Plans; ERISA. (a) Except as previously disclosed would not reasonably be expected to Parent be material to the Company and its Subsidiaries, taken as a whole, no Plan is covered by Title IV of ERISA or subject to Section 412 of the Purchaser, (i) each "employee benefit Code or Section 302 of ERISA. No Plan is a “multiple employer plan" ” (as defined in Section 3(34063 or 4064 of ERISA) or “multiemployer plan” (as defined in Section 4001(a)(3) of the Employee Retirement Income Security Act of 1974, ERISA).
(b) Except as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or would not subject reasonably be expected to ERISA) maintained or sponsored by be material to the Company or and its subsidiaries or any trade or businessSubsidiaries, whether or not incorporated, that would be deemed taken as a "single employer" within the meaning of Section 4001 of ERISA whole: (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans"i) is, each Plan is in compliance in all material respects with applicable Law and has been administered and operated in all material respects in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, terms; (ii) each of the Plans Plan which is intended to be "“qualified" ” within the meaning of Section 401(a) of the Code has been determined by received, or has timely requested, a favorable determination letter from the Internal Revenue Service and no event has occurred and no condition exists that would reasonably be expected to be so qualified, result in the revocation of any such determination; (iii) no "reportable event," as such term Litigation is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement pending or, to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)knowledge of the Company, has occurred threatened with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or benefits payable in the aggregate, ordinary course and appeals of such denied claims); and (iv) the Company and its Subsidiaries have not engaged in a Company Material Adverse Effect. No Plan is a "multiemployer plan" (non-exempt “prohibited transaction,” within the meaning of Section 4975 of the Code and Section 406 of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute , with respect to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse EffectPlan.
(c) With respect Except as would not reasonably be expected to each Plan that is subject be material to Title IV the Company and its Subsidiaries, taken as a whole, neither the execution nor delivery of ERISAthis Agreement nor the consummation of the Transactions will, either alone or in conjunction with any other event: (i) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor who is a natural person of the Company has provided to Parent and the Purchaser copies or any of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, its Subsidiaries under any Plan; (ii) increase the assets and liabilities in respect amount or value of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor who is a natural person under any Plan's actuary fairly presented the funded status of such Plan in all material respects, and ; or (iii) since the date of such valuation report there has been no adverse change result in the funded status acceleration of the time of payment, vesting or funding of any such Plan which would, individually benefit or in the aggregate, have a Company Material Adverse Effectcompensation.
(d) Neither Except as would not reasonably be expected to be material to the Company nor any and its Subsidiaries, taken as a whole, no Plan that is a “welfare benefit plan” within the meaning of Section 3(1) of ERISA Affiliate has failed provides benefits to make any contribution retirees of the Company or payment its Subsidiaries, other than pursuant to any Plan which has resulted or could result in the imposition Section 4980B of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effector any similar state Law.
(e) Except as provided for in this Agreement or would not reasonably be expected to be material to the Company and its Subsidiaries, taken as disclosed in the Disclosure Lettera whole, the consummation Company does not have any obligation to “gross-up” or otherwise indemnify any individual for the imposition of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer excise tax under Section 4999 of the Company Code or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate under Section 409A of the time of payment or vesting or increase the amount of compensation due any such employee or officerCode.
Appears in 2 contracts
Samples: Securities Purchase Agreement (EVO Transportation & Energy Services, Inc.), Securities Purchase Agreement (Antara Capital LP)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and for those matters set forth in Section 4.11(a) of the PurchaserDisclosure Schedule, (i) each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-equity- based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries Subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA AffiliateAFFILIATE"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "PlansPLANS") is, and has been been, operated in all material respects in accordance with its terms and in substantial compliance (including the making of governmental filings) with all applicable Laws, including including, without limitation, ERISA and the applicable provisions of the CodeInternal Revenue Code of 1986, except for failures that would not, individually or in as amended (the aggregate, have a Company Material Adverse Effect"CODE"), (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service (the "IRS") to be so qualifiedqualified and is not under audit by the IRS or the Department of Labor and the Company knows of no fact or set of circumstances that is reasonably likely to adversely affect such qualification prior to the Effective Time, (iii) no material withdrawal liability with respect to any "multiemployer pension plan" (as defined in Section 3(37) of ERISA) would be incurred by the Company and its ERISA Affiliates if withdrawal from such plan were to occur on the Effective Time, (iv) no "reportable event," ", as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") PBGC has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse EffectERISA, and (ivv) there are no pendingmaterial pending or, or to the best knowledge of Company's knowledge threatened, threatened claims (other than routine claims for benefits) by, on behalf of or against, against any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effectother than routine benefit claim matters. No Plan is a "multiemployer plan" (within the meaning of ERISAb) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiencyAccumulated Funding Deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and waived, (ii) neither the Company nor any ERISA Affiliate has incurred any liability Liability under Title IV of ERISA except for required premium payments to the Pension Benefit Guaranty Corporation ("PBGC"), which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.11
(c) With Except as set forth in Section 4.11(c) of the Disclosure Schedule, with respect to each Plan that is subject to Title IV of ERISA, ERISA (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereofPlan, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented present the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no material adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse EffectPlan.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which or multiemployer plan which, in either case has resulted or could result in the imposition of a material lien or the posting of a material bond or other material security under ERISA or the Code which would have a Company Material Adverse EffectCode.
(e) Except as otherwise set forth on Section 4.11(e) of the Disclosure Schedule or as expressly provided for in this Agreement or as disclosed in the Disclosure LetterAgreement, the consummation of the transactions contemplated by this Agreement or the Distribution Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting vesting, or increase the amount of compensation due any such employee or officer.
Appears in 2 contracts
Samples: Merger Agreement (Lockheed Martin Corp), Agreement and Plan of Merger (Loral Corp /Ny/)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Section 5.11(a)(1) of the Parent Disclosure Letter contains a true and complete list of the Purchaser, (i) each "individual or group employee benefit plan" plans or arrangements of any type (as defined including plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefitsponsored, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored contributed to by the Company or its subsidiaries Parent or any trade or business, whether or not incorporated, that which together with Parent would be deemed a "“single employer" ” within the meaning of Section 4001 414(b), (c) or (m) of the Code or Section 4001(b)(1) of ERISA (an "a “Parent ERISA Affiliate"”) within six years prior to the Effective Time (“Parent Benefit Plans”), for the benefit of any employee or former employee and Schedule 5.11(a)(2) of the Company Parent Disclosure Letter lists each individual employment, severance or similar agreement with respect to which Parent or any Parent ERISA Affiliate has any current or future obligation or liability.
(b) With respect to each Parent Benefit Plan: (i) if intended to qualify under Section 401(a) or 401(k) of the Code, such plan satisfies the requirements of such sections, has received a favorable determination letter from the Internal Revenue Service with respect to its ERISA Affiliates (the "Plans") isqualification, and its related trust has been operated determined to be exempt from tax under Section 501(a) of the Code and, to the knowledge of Parent, nothing has occurred since the date of such letter to adversely affect such qualification or exemption; (ii) each such plan has been administered in accordance substantial compliance with its terms and applicable law, except for any noncompliance with respect to any such plan that could not reasonably be expected to result in compliance a Parent Material Adverse Effect; (including iii) neither Parent nor any Parent ERISA Affiliate has engaged in, and Parent and each Parent ERISA Affiliate do not have any knowledge of any Person that has engaged in, any transaction or acted or failed to act in any manner that would subject Parent or any Parent ERISA Affiliate to any liability for a breach of fiduciary duty under ERISA that could reasonably be expected to result in a Parent Material Adverse Effect; (iv) no disputes are pending or, to the making knowledge of governmental filingsParent or any Parent ERISA Affiliate, threatened other than ordinary claims for benefits; (v) with neither Parent nor any Parent ERISA Affiliate has engaged in, and Parent and each Parent ERISA Affiliate do not have any knowledge of any Person that has engaged in, any transaction in violation of Section 406(a) or (b) of ERISA or Section 4975 of the Code for which no exemption exists under Section 408 of ERISA or Section 4975(c) of the Code or Section 4975(d) of the Code that could reasonably be expected to result in a Parent Material Adverse Effect; (vi) there have been no “reportable events” within the meaning of Section 4043 of ERISA for which the 30 day notice requirement of ERISA has not been waived by the PBGC; (vii) all applicable Lawscontributions due have been made on a timely basis (within, including where applicable, the time limit established under Section 302 of ERISA or Code Section 412) except for failures that are not reasonably expected to result in a Parent Material Adverse Effect; (viii) no notice of intent to terminate such plan has been given under Section 4041 of ERISA and no proceeding has been instituted under Section 4042 of ERISA to terminate such plan; and (ix) except for defined benefit plans (if applicable), such plan may be terminated on a prospective basis without any continuing liability for benefits other than benefits accrued to the applicable provisions date of such termination. All contributions made or required to be made under any Parent Benefit Plan meet the requirements for deductibility under the Code, and all contributions which are required and which have not been made have been properly recorded on the books of Parent or a Parent ERISA Affiliate.
(c) No Parent Benefit Plan is a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) or a “multiple employer plan” (within the meaning of Section 413(c) of the Code). No event has occurred with respect to Parent or a Parent ERISA Affiliate in connection with which Parent could be subject to any liability, lien or encumbrance with respect to any Parent Benefit Plan or any employee benefit plan described in Section 3(3) of ERISA maintained, sponsored or contributed to by a Parent ERISA Affiliate under ERISA or the Code, except for failures that would not, individually or regular contributions and benefit payments in the aggregate, have a Company Material Adverse Effect, (ii) each ordinary course of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectplan business.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for set forth in this Agreement or as disclosed in Section 5.11(d) of the Parent Disclosure Letter, no present or former employees of Parent or any of its Subsidiaries are covered by any employee agreements or plans that provide or will provide severance pay, post-termination health or life insurance benefits (except as required pursuant to Section 4980(B) of the Code) or any similar benefits, and the consummation of the transactions contemplated by this Agreement will Transactions shall not (i) entitle cause any current payments or former benefits to any employee to be either subject to an excise tax or officer non-deductible to Parent under Sections 4999 and 280G of the Company or any ERISA Affiliate to severance payCode, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officerrespectively.
Appears in 2 contracts
Samples: Merger Agreement (Stone Energy Corp), Merger Agreement (Plains Exploration & Production Co)
Employee Benefit Plans; ERISA. (a) Set forth on Schedule 3.16(a) is a true and complete list of each Benefit Plan sponsored, maintained, or contributed to, or required to be contributed to by the Company, in which present or former employees of the Company participate, or with respect to which the Company has any liability, whether direct or indirect, actual or contingent, whether formal or informal, and whether legally binding or not.
(b) Except as previously disclosed to Parent and the Purchaser, on Schedule 3.16(b): (i) each "employee benefit plan" (as defined of the Company’s Benefit Plans have been maintained and are in Section 3(3) compliance with the terms of such Benefit Plans and all Applicable Laws, including, without limitation, the Code and the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, ; (ii) each of the Company’s Benefit Plans intended to be "“qualified" ” within the meaning of Section 401(a) of the Code has have been determined by the Internal Revenue Service (the “IRS”) to be so qualifiedqualified and, to the Knowledge of the Company, no event or circumstance has occurred since the date of such determination which would jeopardize the qualification of any of the Company’s Benefit Plans; (iii) no "reportable event," as such term is defined in Section 4043(c) none of ERISA (for which the 30-day notice requirement to the Pension Company’s Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that Plans is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and ERISA; (iv) there are no pending, or to none of the Company's knowledge threatened, claims ’s Benefit Plans are being investigated or have been notified of an investigation by either the Internal Revenue Service or the Department of Labor; and (other than routine claims for benefitsv) by, on behalf neither the Internal Revenue Service nor the Department of Labor is assessing or against, proposing to assess any penalties or interest in connection with the operation of any of the Plans Company’s Benefit Plans.
(c) Except as disclosed on Schedule 3.16(c), the Company has not ever maintained, established, sponsored, participated in, or contributed to, any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer “employee pension benefit plan" (” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) subject to Part 3 Subtitle B of Title I of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 , Title IV of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither Except as disclosed on Schedule 3.16(d), the Company nor any ERISA Affiliate has failed to make any contribution not ever maintained, established, sponsored, participated in or payment contributed to any Plan self-insured “group health plan” (within the meaning of Section 5000(b)(i) of the Code) that provides benefits to employees (other than medical flexible spending account, health reimbursement arrangement or similar program, including any such plan pursuant to which has resulted a stop-loss policy or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effectcontract applies).
(e) The Company has not ever contributed to or been obligated to contribute to any multiemployer plan (as defined in Section 3(37) of ERISA). The Company has not ever maintained, established, sponsored, participated in or contributed to any multiple employer plan or to any plan described in Section 413 of the Code.
(f) No Company Benefit Plan provides, or reflects or represents any liability to provide, post-termination or retiree life insurance, health or other employee welfare benefits to any person for any reason, except as may be required by COBRA or other applicable statute, and the Company has not ever represented, promised, or contracted (whether orally or in writing) to any employee (either individually or to employees as a group) or any other person that such employee(s) or other persons would be provided with life insurance, health or other employee benefits after termination or retirement, except as required by statute.
(g) Schedule 3.16(g) sets forth a complete and accurate list of each employee of the Company, including the name of such employee and the salary, wage or other compensation paid to each such employee on annual or hourly basis, as the case may be, on the date hereof, as well as the date of employment, their position and the date of their last increase in compensation. Except as provided disclosed on Schedule 3.16(g), to the Company’s Knowledge, no such employee intends to terminate his or her employment with the Company for any reason. Schedule 3.16(g) also sets forth a complete and accurate list of each independent contractor or consultant engaged by the Company, including such contractor’s or consultant’s manner of compensation, date of retention and the date of the last increase in such compensation.
(h) Except as set forth on Schedule 3.16(h), neither the execution and delivery of this Agreement or as disclosed in Agreement, the Disclosure Letter, Transaction Documents nor the consummation of the transactions contemplated by this Agreement will not Transactions or any termination of employment or service in connection therewith will: (i) entitle result in any current payment (including severance, golden parachute, bonus or otherwise), becoming due and payable to any employee or former employee or officer of the Company Company, (ii) result in any forgiveness of indebtedness payable by any employee or former employee to the Company, (iii) materially increase any ERISA Affiliate to severance pay, unemployment compensation or any other paymentbenefits otherwise payable by the Company, or (iiiv) accelerate result in the acceleration of the time of payment or vesting or increase the amount of compensation due any such benefits, except as required under Section 411(d)(3) of the Code.
(i) Except as set forth on Schedule 3.16(i), there is no agreement, plan, arrangement or other contract covering any employee that, considered individually or officerconsidered collectively with any other such agreements, plans, arrangements or other contracts, will, or could reasonably by expected to, give rise directly or indirectly to the payment of any amount that would be characterized as a “parachute payment” within the meaning of Section 280G(b)(1) of the Code. There is no agreement, plan, contract or other arrangement by which the Company is or was bound to compensate any employee for excise taxes paid pursuant to Section 4999 of the Code. Section 3.16(i) lists all persons that the Company reasonably believes are “disqualified persons” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder) as determined as of the date hereof.
Appears in 2 contracts
Samples: Merger Agreement (It&e International Group), Merger Agreement (Lavin Philip T)
Employee Benefit Plans; ERISA. (a) Except Section 5.9(a) of the Company Disclosure Schedule lists, as previously disclosed of the date of this Agreement, all material Benefit Plans and separately identifies each material Foreign Benefit Plan. With respect to each Benefit Plan, if applicable, the Company has made available to Parent true and the Purchaser, complete copies of (i) each "employee benefit plan" the plan document (as defined in and, if applicable, related trust or funding agreements or insurance policies), (ii) the most recent summary plan description or prospectus and any summary of material modifications, (iii) the most recent annual report (including all schedules), (iv) if the Benefit Plan is intended to qualify under Section 3(3401(a) of the Employee Retirement Income Security Act of 1974Code, as amended ("ERISA"))the most recent determination, advisory, or opinion letter received from the IRS, and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare v) the most recent actuarial reports and financial statements.
(including post-retirement medical and life insuranceb) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, Each Benefit Plan is and has been operated in accordance material compliance with its terms and in compliance (including the making of governmental filings) with all applicable LawsLaw, including ERISA and the applicable provisions Code and has been administered in all material respects in accordance with its terms. There are no pending or, to the Knowledge of the CodeCompany, except threatened claims (other than claims for failures that would not, individually or benefits in the aggregateordinary course), lawsuits, charges, complaints, grievances, investigations, audits, proceedings or arbitrations that have a Company Material Adverse Effect, (ii) each of the Plans been asserted or instituted with respect to any Benefit Plan. Each Benefit Plan intended to be "qualified" within the meaning of qualified under Section 401(a) of the Code has been determined by is the Internal Revenue Service to be so qualifiedsubject of an unrevoked favorable determination, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which advisory, or opinion letter from the 30-day notice requirement IRS, and, to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)Knowledge of the Company, nothing has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in since the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any date of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could most recent such determination that would reasonably be anticipated expected to result in any claims being made against Purchaser by the PBGC, in any adversely affect such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effectqualification.
(c) With respect to each Neither the Company nor any Subsidiary or ERISA Affiliate of the Company (i) maintains, sponsors or contributes to, or has within the past six (6) years maintained, sponsored or contributed to, a Benefit Plan that is a “defined benefit plan” (as defined in ERISA Section 3(35)) or otherwise subject to Title IV of ERISA, (iii) the Company has provided any material liability with respect to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior any “defined benefit plan,” whether or not subject to the date hereofERISA, (iiiii) the assets has an “obligation to contribute” (as defined in ERISA Section 4212) to a Benefit Plan that is a “multiemployer plan” (as defined in ERISA Sections 4001(a)(3) and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects3(37)(A)), and (iiiiv) since has any liability, contingent or otherwise, under Title IV of ERISA with respect to a Benefit Plan. No Benefit Plan subject to ERISA holds securities issued by the date Company or any of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectits current ERISA Affiliates.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution Subsidiary of the Company sponsors, maintains or payment contributes to any Plan which has resulted plan, program or could result in the imposition of a lien or the posting of a bond arrangement that provides for post-retirement or other security under ERISA or the Code which would have a Company Material Adverse Effectpost-employment welfare benefits, including life insurance (other than health care continuation coverage as required by Law).
(e) Except as provided for in contemplated by this Agreement, the execution and delivery of this Agreement or as disclosed in the Disclosure Letter, and the consummation of the transactions contemplated by this Agreement will not (either alone or in combination with another event) (i) entitle result in any current or former employee or officer of material payment from the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other paymentof its Subsidiaries becoming due, or materially increase the amount of any compensation due, to any Service Provider, (ii) accelerate increase any benefits otherwise payable under any Benefit Plan, (iii) result in the acceleration of the time of payment or vesting of any compensation or increase benefits from the Company or any of its Subsidiaries to any Service Provider, or (iv) limit or restrict the right of the Company to merge, amend or terminate any of the Benefit Plans. Without limiting the generality of the foregoing, no amount payable to any Service Provider (whether in cash or property or as a result of accelerated vesting) as a result of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement (either alone or together with any other event) under any Benefit Plan or other compensation due arrangement would be nondeductible under Sections 280G of the Code. Neither the Company nor any Company Subsidiary has any obligation to compensate any Service Provider for any excise taxes incurred by such Service Provider, including under Sections 409A and 4999 of the Code.
(f) To the Knowledge of the Company, (i) each Foreign Benefit Plan and related trust, if any, complies with and has been administered in material compliance with its terms and the Laws of the applicable foreign country, (ii) each Foreign Benefit Plan which, under the Laws of the applicable foreign country, is required to be registered or approved by any Governmental Entity, has been so registered or approved, and (iii) each Foreign Benefit Plan intended to qualify for special tax treatment meets all the requirements for such treatment. The Company and its Subsidiaries have complied in all material respects with all applicable Laws regarding participation in and contributions required to be made to any Mandated Benefit Plans.
(g) To the Knowledge of the Company, each Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Code Section 409A(d)(1)) has been operated since December 31, 2004 in compliance with applicable guidance under Code Section 409A and has been documented in accordance with Section 409A since January 1, 2009.
(h) The parties acknowledge that certain payments have been made or are to be made and certain benefits have been granted or are to be granted according to employment compensation, severance and other employee benefit plans of the Company and the Company Subsidiaries or officerpursuant to other arrangements with the Company and the Company Subsidiaries, including the Plans, to holders of Company Common Stock and other securities of the Company (the “Covered Securityholders”) (with all such plans and arrangements being collectively referred to as the “Company Arrangements”). All such amounts payable under the Company Arrangements (i) have been or are being paid or granted as compensation for past services performed, future services to be performed, or future services to be refrained from performing, by the Covered Securityholders (and matters incidental thereto) and (ii) were not, and are not, calculated based on the number of shares tendered or to be tendered into the Offer by the applicable Covered Securityholder. The adoption, approval, amendment or modification of each Company Arrangement has been approved as an employment compensation, severance or other employee benefit arrangement solely by independent directors of the Company in accordance with the requirements of Rule 14d–10(d)(2) under the Exchange Act and the instructions thereto and the “safe harbor” provided pursuant to Rule 14d–10(d)(2) is otherwise applicable thereto as a result of the taking prior to the execution of this Agreement of all necessary actions by the board of directors of the Company, the compensation committee of the board of directors of the Company (the “Company Compensation Committee”) or its independent directors. A true and complete copy of any resolutions of any committee of the Company Board reflecting any approvals and actions referred to in the preceding sentence and taken prior to the date of this Agreement has been made available to Parent prior to the execution of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed With respect to Parent and the Purchaser, Business: (i) each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries any Seller or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company a Division or Subsidiary or any of its Sellers' ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and is in compliance (including the making of governmental filings) with all applicable Lawslaws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, not have a Company Seller Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code (the "Qualified Plans") has been determined by the Internal Revenue Service to be so qualified, and, since the date of such determination, no event has occurred that would adversely effect a Plan's qualified status, (iii) no "reportable event," as such that term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which that presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, that would have a Company Seller Material Adverse Effect, and (iv) there are no pendingpending or, or to the Company's knowledge threatenedSellers' knowledge, threatened claims (other than routine claims for benefits) audits, investigations or litigation by, on behalf of of, against or againstrelating to, any of the Plans or any trusts related thereto which would, individually or in the aggregate, that would have a Company Seller Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) nor has the Company any Seller or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan relating to the Business has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company any Seller nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which that are reasonably likely to give rise to any liability of the Company any Seller or an ERISA Affiliate under Title IV of ERISA or which that could reasonably be anticipated to result in any claims being made against the Purchaser by the PBGC, in any such case, which presents PBGC that present a risk of liability which would, individually or in the aggregate, that would have a Company Seller Material Adverse Effect.
(c) With respect to each Plan relating to the Business that is subject to Title IV of ERISA, (i) the Company has Sellers have provided to Parent and or the Purchaser copies of the most recent actuarial valuation report prepared for such the Plan prior to before the date hereofof this Agreement, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such the Plan in all material respects, and (iii) since the date of such the valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, of those Plans that would have a Company Seller Material Adverse Effect.
(d) Neither the Company any Seller nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which relating to the Business that has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which that would have a Company Seller Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Scotsman Industries Inc), Asset Purchase Agreement (Kysor Industrial Corp /Mi/)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each Each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentivedeferred compensation, stock share option (or other equity-based)written agreement relating to employment or fringe benefits for employees, severanceformer employees, change in controlofficers, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether trustees or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning directors of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company EUA or any of its ERISA Affiliates Subsidiaries effective as of the date hereof or providing benefits as of the date hereof to current employees, former employees, officers, trustees or directors of EUA or pursuant to which EUA or any of its subsidiaries has or could reasonably be expected to have any liability (collectively, the "EUA Employee Benefit Plans") isis listed in Section 4.11(a) of the EUA Disclosure Letter, is in material compliance with applicable law, and has been administered and operated in all material respects in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans terms. Each EUA Employee Benefit Plan which is intended to be "qualified" qualified within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS as to such qualification and, to the knowledge of EUA, no event has occurred and no condition exists which could reasonably be expected to result in the revocation of, or have any adverse effect on, any such determination.
(b) Complete and correct copies of the following documents have been determined by made available to XXXX as of the Internal Revenue Service date of this Agreement: (i) all EUA Employee Benefit Plans and any related trust agreements or insurance contracts, (ii) the most current summary descriptions of each EUA Employee Benefit Plan subject to be so qualifiedERISA, (iii) the three most recent Form 5500s and Schedules thereto for each EUA Employee Benefit Plan subject to such reporting, (iv) the most recent determination of the IRS with respect to the qualified status of each EUA Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code, (v) the most recent accountings with respect to each EUA Employee Benefit Plan funded through a trust and (vi) the most recent actuarial report of the qualified actuary of each EUA Employee Benefit Plan with respect to which actuarial valuations are conducted.
(c) Except as set forth in Section 4.11(c) of the EUA Disclosure Letter, neither EUA nor any Subsidiary maintains or is obligated to provide benefits under any EUA Employee Benefit Plan (other than as an incidental benefit under a Plan qualified under Section 401(a) of the Code) which provides health or welfare benefits to retirees or other terminated employees other than benefit continuations as required pursuant to Section 601 of ERISA. Each EUA Employee Benefit Plan subject to the requirements of Section 601 of ERISA has been operated in material compliance therewith. EUA has not contributed to a nonconforming group health plan (as defined in Code Section 5000(c)) and no person under common control with EUA within the meaning of Section 414 of the Code ("reportable eventERISA Affiliate") has incurred a tax liability under Code Section 5000(a) that is or could reasonably be expected to be a liability of EUA's.
(d) Except as set forth in Section 4.11(d) of the EUA Disclosure Letter, each EUA Employee Benefit Plan covers only employees who are employed by EUA or a Subsidiary (or former employees or beneficiaries with respect to service with EUA or a Subsidiary).
(e) Except as set forth in Section 4.11(e) of the EUA Disclosure Letter, neither EUA, any Subsidiary, any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, within the five-year period preceding the date of this Agreement, at any time contributed to any "multiemployer plan," as such that term is defined in Section 4043(c4001 of ERISA.
(f) No event has occurred, and there exists no condition or set of circumstances in connection with any EUA Employee Benefit Plan, under which EUA or any Subsidiary, directly or indirectly (through any indemnification agreement or otherwise), could be subject to any liability under Section 409 of ERISA, Section 502(i) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)ERISA, has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk or Section 4975 of liability to any governmental entity or other person the Code except for instances of non-compliance which, individually or in the aggregate, would could not reasonably be expected to have a Company an EUA Material Adverse Effect.
(g) Neither EUA nor any ERISA Affiliate has incurred any liability to the Pension Benefit Guaranty Corporation (the "PBGC") under Section 302(c)(ii), and (iv) there are no pending4062, 4063, 4064 or 4069 of ERISA, or otherwise that has not been satisfied in full and no event or condition exists or has existed which could reasonably be expected to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, result in any such material liability. As of the Plans or any trusts related thereto which woulddate of this Agreement, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a no "multiemployer planreportable event" (within the meaning of ERISA) nor Section 4043 of ERISA has the Company or any ERISA Affiliate ever contributed or been required to contribute occurred with respect to any multiemployer planEUA Employee Benefit Plan that is a defined benefit plan under Section 3(35) of ERISA.
(h) Except as set forth in Section 4.11(h) of the EUA Disclosure Letter, no employer securities, employer real property or other employer property is included in the assets of any EUA Employee Benefit Plan.
(i) No Full payment has been made of all material amounts which EUA or any affiliate thereof was required under the terms of EUA Employee Benefit Plans to have paid as contributions to such plans on or prior to the Effective Time (excluding any amounts not yet due) and no EUA Employee Benefit Plan which is subject to Part III of Subtitle B of Title I of ERISA has incurred an any "accumulated fund funding deficiency" (as defined in within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effectwaived.
(cj) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits Except as set forth in Section 4.11(j) of the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the EUA Disclosure Letter, the consummation no amounts payable under any EUA Employee Benefit Plan or other agreement, contract, or arrangement will fail to be deductible for federal income tax purposes by virtue of Section 280G or Section 162(m) of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officerCode.
Appears in 2 contracts
Samples: Merger Agreement (New England Electric System), Merger Agreement (New England Electric System)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 3.9 of the Purchaser, (i) each "Company's Disclosure Schedule sets forth a list of all material employee benefit plan" plans, arrangements, contracts or agreements (as defined including, but not limited to, employment agreements, severance agreements, executive compensation arrangements, equity arrangements, incentive plans, bonus plans, deferred compensation agreements, health, accident, vacation or other fringe benefit plans) of any type (including but not limited to plans described in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or Company, any of its subsidiaries Subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA incorporated (an "ERISA Affiliate"), for the benefit of any employee or former employee of which together with the Company or any of its ERISA Affiliates (the would be under "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualifiedcommon control" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(csection 4001(a)(14) of ERISA (for which the 30-day notice requirement to the Pension "Benefit Guaranty Corporation (Plans"PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither Neither the Company nor any ERISA Affiliate has incurred any formal plan or commitment, whether legally binding or not, to create any additional Benefit Plan or modify or change any existing Benefit Plan that would affect any employee or terminated employee of the Company or any Subsidiary.
(b) With respect to each Benefit Plan: (i) if intended to qualify under section 401(a), 401(k) or 403(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Code"), the United States Internal Revenue Service (the "Service") has issued a favorable letter of determination on such qualified status and on the exempt status under section 501(a) of the Code and since such letter of determination no event has occurred that would disqualify such plan; (ii) such plan has been administered in all material respects in accordance with its terms and applicable law; (iii) no breaches of fiduciary duty have occurred which might reasonably be expected to give rise to material liability on the part of the Company; (iv) no disputes are pending, or, to the knowledge of the Company, threatened that might reasonably be expected to give rise to material liability on the part of the Company; (v) no prohibited transaction (within the meaning of Section 406 of ERISA) has occurred that might reasonably be expected to give rise to material liability on the part of the Company; (vi) all contributions and premiums due as of the date hereof (taking into account any extensions for such contributions and premiums) have been made in full; and (vii) all reports required to be filed with respect to such Benefit Plan have been properly, accurately and timely filed.
(c) Neither the Company nor any ERISA Affiliate (a) has incurred, or reasonably expects to incur, an accumulated funding deficiency, as defined in the Code and ERISA or (b) has any material liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise with respect to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Benefit Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither With respect to each Benefit Plan that is a "welfare plan" (as defined in section 3(1) of ERISA), no such plan provides medical or death benefits with respect to current or former employees of the Company nor or any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting its Subsidiaries beyond their termination of a bond or employment, other security under ERISA or the Code which would have a Company Material Adverse Effectthan on an employee-pay-all basis.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Lettercontemplated by Section 2.5, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate individual to severance pay, unemployment compensation pay or any other payment, or (ii) accelerate the time of payment or vesting vesting, or increase the amount amount, of compensation or benefits due to any individual, (ii) constitute or result in a prohibited transaction under section 4975 of the Code or section 406 or 407 of ERISA or (iii) subject the Company, any of its Subsidiaries, any ERISA Affiliate, any of the Benefit Plans, any related trust, any trustee or administrator of any thereof, or any party dealing with the Benefit Plans or any such employee trust to either a civil penalty assessed pursuant to section 409 or officer502(i) of ERISA or a tax imposed pursuant to section 4976 or 4980B of the Code.
(f) There is no arrangement under any Benefit Plan that would result in the payment of any amount that by operation of section 280G or 162(m) of the Code would not be deductible by the Company or any of the Subsidiaries.
(g) There are no unfunded obligations under any Benefit Plan except to the extent of reserves therefor shown in the Company SEC Documents.
(h) No employees of the Company or any of its Subsidiaries who earn annual compensation in 1998 in excess of $50,000 have threatened to terminate or are reasonably expected to terminate, their employment prior to or after the Effective Time.
(i) Neither the Company nor any ERISA Affiliate has at any time within the preceding six years been obligated to contribute to any Benefit Plan that is a "multiemployer plan," as such term is defined in section 3(37) of ERISA.
(j) With respect to each Benefit Plan, the Company has made available to Mergerco or its representatives accurate and complete copies of all plan texts, summary plan descriptions, summary of material modifications, trust agreements and other related agreements including all amendments to the foregoing; the most recent annual report; the most recent annual and periodic accounting of plan assets; the most recent determination letter received from the Service; and the most recent actuarial valuation, to the extent any of the foregoing may be applicable to a particular Benefit Plan.
Appears in 2 contracts
Samples: Merger Agreement (Jupiter Partners Lp), Merger Agreement (Pca International Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaserset forth in Schedule 3.15(a), (i) each "there are no material employee benefit plan" plans (as defined including any plans for the benefit of directors or former directors), arrangements, practices, contracts or agreements (including employment agreements and severance agreements, incentive compensation, bonus, stock option, stock appreciation rights and stock purchase plans) of any type (including plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefitmaintained by Company, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or any of its subsidiaries Subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA incorporated (an "ERISA Affiliate"), for that together with Company would be deemed a "controlled group" within the benefit meaning of any employee Section 4001(a)(14) of ERISA, or former employee of the with respect to which Company or any of its ERISA Affiliates Subsidiaries has or may have a liability (the "Company Benefit Plans"). Except as disclosed in Schedule 3.15(a) is(or as otherwise permitted by this Agreement): (1) neither Company nor any ERISA Affiliate has any formal plan or commitment, whether legally binding or not, to create any additional Company Benefit Plan or modify or change any existing Company Benefit Plan that would affect any employee or terminated employee of Company or any ERISA Affiliate; and (2) since October 31, 1997, there has been operated no change, amendment, modification to, or adoption of, any Company Benefit Plan, in accordance with its terms and in compliance each case, that has had, or would be reasonably likely to have, a Material Adverse Effect on Company.
(including the making of governmental filingsb) with all applicable Laws, including ERISA and the applicable provisions of the CodeWith respect to each Company Benefit Plan, except for failures that as disclosed in Schedule 3.15(b) or as would not, individually or in the aggregate, have a Company Material Adverse EffectEffect on Company: (i) if intended to qualify under Section 401(a), 401(k) or 403(a) of the Code, such plan so qualifies, and its trust is exempt from taxation under Section 501(a) of the Code; (ii) each such plan has been administered in accordance with its terms and applicable law; (iii) no breaches of the Plans intended to be "qualified" fiduciary duty have occurred; (iv) no prohibited transaction within the meaning of Section 401(a406 of ERISA has occurred; (v) as of the date of this Agreement, no lien imposed under the Code or ERISA exists; and (vi) all contributions and premiums due (including any extensions for such contributions and premiums) have been made in full.
(c) None of the Company Benefit Plans has been determined by the Internal Revenue Service to be so qualifiedincurred any "accumulated funding deficiency", (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and waived.
(iid) Except as disclosed in Schedule 3.15(d), neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA (including Sections 4063-4064 and 4069 of ERISA) that has not been satisfied in full except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which wouldas, individually or in the aggregate, would not have or would not be reasonably likely to have a Company Material Adverse EffectEffect on Company or that has not been reflected on Company's consolidated financial statements.
(ce) With respect to each Company Benefit Plan that is subject to Title IV a "welfare plan" (as defined in Section 3(1) of ERISA), (i) except as specifically disclosed in Schedule 3.15(e), no such plan provides medical or death benefits with respect to current or former employees of Company or any of its Subsidiaries beyond their termination of employment, other than as may be required under Part 6 of Title I of ERISA and at the Company has provided to Parent and the Purchaser copies expense of the most recent actuarial valuation report prepared for such Plan prior to participant or the date hereof, (ii) the assets participant's beneficiary and liabilities in respect of the accrued benefits except as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which wouldwould not be reasonably likely, individually or in the aggregate, to have a Company Material Adverse EffectEffect on Company.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(ef) Except as provided for with respect to payments under the agreements and programs specified in this Agreement or as disclosed in the Disclosure LetterSchedule 3.15(f), the consummation of the transactions contemplated by this Agreement will not (i) entitle any current individual to severance pay or former employee or officer any tax "gross-up" payments with respect to the imposition of any tax pursuant to Section 4999 of the Company Code or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting vesting, or increase the amount amount, of compensation or benefits due to any individual with respect to any Company Benefit Plan.
(g) Except as disclosed in Schedule 3.15(a), there is no Company Benefit Plan that is a "multiemployer plan", as such employee term is defined in Section 3(37) of ERISA, or officerwhich is covered by Section 4063 or 4064 of ERISA.
(h) Schedule 3.15(h) identifies each collective bargaining agreement to which Company or any of its Significant Subsidiaries is a party and copies of each such agreement have been furnished to or made available to Parent. Except as set forth on Schedule 3.15(h), or except as would not be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect on Company, (i) there is no labor strike, slowdown or work stoppage or lockout against Company or any of its Significant Subsidiaries and (ii) there is no unfair labor practice charge or complaint against or pending before the National Labor Relations Board. As of the date of this Agreement, there is no representation claim or petition pending before the National Labor Relations Board and, to the knowledge of Company, no question concerning representation exists with respect to the employees of Company or any of its Significant Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (CVS Corp), Merger Agreement (CVS Corp)
Employee Benefit Plans; ERISA. (a) Except There are no Company Benefit Plans (as previously disclosed defined below) except as set forth in Section 4.13 of the Disclosure Schedule. With respect to Parent and each Company Benefit Plan, to the Purchaser, extent applicable:
(i) each "employee benefit plan" of the Company Benefit Plans is, and its administration is and has been in compliance with, and none of the Company nor any of its Subsidiaries has received any claim or notice that any such Company Benefit Plan is not in compliance with, its terms and all applicable laws, regulations, rulings and other authority issued thereunder and all other applicable governmental laws, regulations and orders, and prohibited transaction exemptions, including, without limitation, the requirements of ERISA and all Tax rules for which favorable Tax treatment is intended, bonding requirements and requirements for the filing of applicable reports, documents, and notices with the Secretary of Labor or the Secretary of the Treasury and the furnishing of documents to the participants and beneficiaries (and other individuals entitled to such documents) of each such Plan (as defined in Section 3(3below);
(ii) of neither the Employee Retirement Income Security Act of 1974, PBGC (as amended ("ERISA")defined below), the Company nor any of its Subsidiaries has instituted proceedings to terminate any Company Benefit Plan;
(iii) all contributions, premiums and other payments required by law or any Plan or applicable collective bargaining agreement to have been made under any such Plan to any fund, trust or account established thereunder or in connection therewith have been made by the due date thereof; and any and all contributions, premiums and other employee benefitpayments with respect to compensation or service before and through the Closing, bonusor otherwise with respect to periods before and through the Closing, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by due from any of the Company or its subsidiaries affiliates to, under or any trade on account of each Company Benefit Plan shall have been paid prior to Closing or business, whether shall have been fully reserved and provided for on the Company Financial Statements; 20 25 (iv) no Company Benefit Plan is now or not incorporated, that would be deemed a "single employer" within the meaning has ever been subject to Part III of Section 4001 Subtitle B of Title I of ERISA or Section 412 of the Code;
(an "ERISA Affiliate")v) the actuarial present value on a termination basis of accrued benefits under each of the Company Benefit Plans sponsored by the Company, for the benefit of any employee or former employee Subsidiary of the Company or any ERISA Affiliate which is subject to Title IV of ERISA, based upon the interest rate assumptions that would be utilized by the PBGC to value annuities for a pension plan termination and the other actuarial assumptions and methods currently used for such Company Benefit Plan, did not, as of its ERISA Affiliates (latest valuation date, exceed the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions then current value of the Code, except for failures that would not, individually or in the aggregate, have a assets of such Company Material Adverse Effect, Benefit Plan;
(iivi) each of the Company Benefit Plans which is intended to be "qualified" within the meaning of Tax-qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service IRS to be so qualified, (iii) no "reportable event," as qualified and such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") determination has not been waived)modified, has revoked or limited, and no circumstances have occurred that would adversely affect the tax-qualified status of any such Plan;
(vii) there is no suit, action, dispute, claim, arbitration or legal, administrative or other proceeding or governmental investigation pending, or threatened, alleging any breach of the terms of any such Plan or of any fiduciary duties thereunder or violation of any applicable law with respect to any Plan that such Plan;
(viii) none of the Company or any of its Subsidiaries is subject to Title IV in default in performing any of ERISA which presents a risk its contractual obligations under any of liability to the Company Benefit Plans or any governmental entity related trust agreement or other person whichinsurance contract;
(ix) none of the Company or any Subsidiary of the Company, individually or in the aggregateor, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or againstbest knowledge, any of the Plans or any trusts related thereto which would, individually or "party in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiencyinterest" (as defined in Section 302 3(14) of ERISA ERISA) or any "disqualified person" (as defined in Section 412 4975 of the Code)) with respect to any such Plan, whether has engaged in a non-exempt "prohibited transaction" within the meaning of Section 4975 of the Code or not waived and Section 406 of ERISA;
(iia) neither no Company Benefit Plan that is a "welfare benefit plan" (as defined in Section 3(1) of ERISA) provides for continuing benefits or coverage for any participant or beneficiary or covered dependent of a participant after such participant's termination of employment, except to the Company nor any ERISA Affiliate extent required by Law; (b) there has incurred any liability under Title IV been no violation of Section 4980B of the Code or Sections 601 through 608 of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise with respect to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which such Plan that could reasonably be anticipated to result in any claims being made against Purchaser by material liability; (c) no such Plans are "multiple employer welfare arrangements" within the PBGC, in meaning of Section 3(40) of ERISA; (d) with respect to any such casePlans that are self-insured, which presents a risk all claims made pursuant to any such Plan that have not yet been paid are set forth in Section 4.13 of liability which wouldthe Disclosure Schedule, individually or together with an estimate thereof; no such claim could, in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV result in an uninsured liability in excess of ERISA$10,000 per participant or covered dependent, (i) and all such claims could not result in an uninsured liability of more than $100,000 in the Company has provided to Parent aggregate for all participants and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereofcovered dependents combined, (ii) the assets and liabilities in respect of the accrued benefits are estimated as set forth in on Section 4.13 of the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
Disclosure Schedule; (e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation none of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.the
Appears in 2 contracts
Samples: Merger Agreement (Proxima Corp), Merger Agreement (Ask Asa)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Section 5.11(a)(1) of the Parent Disclosure Letter contains a true and complete list of the Purchaser, (i) each "individual or group employee benefit plan" plans or arrangements of any type (as defined including plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefitsponsored, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored contributed to by the Company or its subsidiaries Parent or any trade or business, whether or not incorporated, that which together with Parent would be deemed a "“single employer" ” within the meaning of Section 4001 414(b), (c) or (m) of the Code or Section 4001(b)(1) of ERISA (an "a “Parent ERISA Affiliate"”) within six years prior to the Effective Time (“Parent Benefit Plans”), for the benefit of any employee or former employee and Schedule 5.11(a)(2) of the Company Parent Disclosure Letter lists each individual employment, severance or similar agreement with respect to which Parent or any Parent ERISA Affiliate has any current or future obligation or liability.
(b) With respect to each Parent Benefit Plan: (i) if intended to qualify under Section 401(a) or 401(k) of the Code, such plan satisfies the requirements of such sections, has received a favorable determination letter from the Internal Revenue Service with respect to its ERISA Affiliates (the "Plans") isqualification, and its related trust has been operated determined to be exempt from tax under Section 501(a) of the Code and, to the knowledge of Parent, nothing has occurred since the date of such letter to adversely affect such qualification or exemption; (ii) each such plan has been administered in accordance substantial compliance with its terms and applicable law, except for any noncompliance with respect to any such plan that could not reasonably be expected to result in compliance a Parent Material Adverse Effect; (including iii) neither Parent nor any Parent ERISA Affiliate has engaged in, and Parent and each Parent ERISA Affiliate do not have any knowledge of any Person that has engaged in, any transaction or acted or failed to act in any manner that would subject Parent or any Parent ERISA Affiliate to any liability for a breach of fiduciary duty under ERISA that could reasonably be expected to result in a Parent Material Adverse Effect; (iv) no disputes are pending or, to the making knowledge of governmental filingsParent or any Parent ERISA Affiliate, threatened other than ordinary claims for benefits; (v) with neither Parent nor any Parent ERISA Affiliate has engaged in, and Parent and each Parent ERISA Affiliate do not have any knowledge of any Person that has engaged in, any transaction in violation of Section 406(a) or (b) of ERISA or Section 4975 of the Code for which no exemption exists under Section 408 of ERISA or Section 4975(c) of the Code or Section 4975(d) of the Code that could reasonably be expected to result in a Parent Material Adverse Effect; (vi) there have been no “reportable events” within the meaning of Section 4043 of ERISA for which the 30 day notice requirement of ERISA has not been waived by the PBGC; (vii) all applicable Lawscontributions due have been made on a timely basis (within, including where applicable, the time limit established under Section 302 of ERISA or Code Section 412) except for failures that are not reasonably expected to result in a Parent Material Adverse Effect; (viii) no notice of intent to terminate such plan has been given under Section 4041 of ERISA and no proceeding has been instituted under Section 4042 of ERISA to terminate such plan; and (ix) except for defined benefit plans (if applicable), such plan may be terminated on a prospective basis without any continuing liability for benefits other than benefits accrued to the applicable provisions date of such termination. All contributions made or required to be made under any Parent Benefit Plan meet the requirements for deductibility under the Code, and all contributions which are required and which have not been made have been properly recorded on the books of Parent or a Parent ERISA Affiliate.
(c) No Parent Benefit Plan is a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) or a “multiple employer plan” (within the meaning of Section 413(c) of the Code). No event has occurred with respect to Parent or a Parent ERISA Affiliate in connection with which Parent could be subject to any liability, lien or encumbrance with respect to any Parent Benefit Plan or any employee benefit plan described in Section 3(3) of ERISA maintained, sponsored or contributed to by a Parent ERISA Affiliate under ERISA or the Code, except for failures that would not, individually or regular contributions and benefit payments in the aggregate, have a Company Material Adverse Effect, (ii) each ordinary course of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectplan business.
(d) Neither the Company nor No present or former employees of Parent or any ERISA Affiliate has failed to make of its Subsidiaries are covered by any contribution employee agreements or payment to any Plan which has resulted plans that provide or could result in the imposition of a lien or the posting of a bond will provide severance pay, post-termination health, life insurance or other security under ERISA welfare benefits (except as required pursuant to Section 4980(B) of the Code) or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letterany similar benefits, and the consummation of the transactions contemplated by this Agreement will Transactions shall not (i) entitle cause any current payments or former benefits to any employee to be either subject to an excise tax or officer non-deductible to Parent under Sections 4999 and 280G of the Company or any ERISA Affiliate to severance payCode, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officerrespectively.
Appears in 2 contracts
Samples: Merger Agreement (Energy Partners LTD), Merger Agreement (Stone Energy Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed Schedule 4.15 hereto sets forth a true and complete list of each retirement, pension, bonus, stock purchase, profit sharing, stock option, deferred compensation, severance or termination pay, insurance, medical, hospital, dental, vision care, drug, sick leave, disability, salary continuation, retiree health, legal benefits, unemployment benefits, vacation, incentive or other compensation plan, agreement or arrangement or other employee benefit, whether written or unwritten, insured or uninsured, whether single employer, multiple employer or multiemployer plan, that is maintained or otherwise contributed to Parent or required to be contributed to at any time during the three (3) calendar years preceding the date of this Agreement (the "Company Plans"), by the Company and each of its Subsidiaries or by any trade or business, whether or not incorporated (an "ERISA Affiliate"), which together with the Purchaser, (i) each Company or any of its Subsidiaries would be deemed a "employee benefit plansingle employer" (as defined in within the meaning of Section 3(3) 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Neither the Company, any of its Subsidiaries nor any ERISA Affiliate has any formal plan or commitment to create any additional plan or modify any existing Company Plan.
(b) Except as set forth on Schedule 4.15(b), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee each of the Company or any of its Plans that is subject to ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and is in compliance (including the making of governmental filings) with ERISA in all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) material respects; each of the Company Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be is so qualified, no event has occurred which may affect such qualification and the trusts maintained thereunder are exempt from taxation under Section 501(a) of the Code; no Company Plan has an accumulated or waived funding deficiency within the meaning of Section 412 of the Code; neither the Company nor an ERISA Affiliate has incurred, directly or indirectly, any material liability (iiiincluding any material contingent liability) to or on account of a Company Plan pursuant to Title IV of ERISA; no proceedings have been instituted to terminate any Company Plan that is subject to Title IV of ERISA; no "reportable event," as such term is defined in Section 4043(c4043(b) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)ERISA, has occurred with respect to any Company Plan; and no condition exists that presents a material risk to the Company or an ERISA Affiliate of incurring a liability to or on account of a Company Plan that is pursuant to Title IV of ERISA. Except as set forth on Schedule 4.15(b), neither the Company nor any ERISA Affiliate has any unfunded liability for (i) post-retirement welfare benefits including retiree life and medical benefits; or (ii) pension benefits under a Company Plan subject to Title IV of ERISA which presents ERISA.
(c) Except as set forth on Schedule 4.15(c), the current value of the assets of each of the Company Plans that are subject to Title IV of ERISA, based upon the actuarial assumptions (to the extent reasonable) presently used by the Company Plans, exceeds the present value of the accrued benefits under each such Company Plan; no Company Plan is a risk multiemployer plan (within the meaning of liability to any governmental entity Section 4001(a)(3) of ERISA) and no Company Plan is a multiple employer plan as defined in Section 413 of the Code; and all contributions or other person which, individually amounts payable by the Company as of the Effective Time with respect to each Company Plan in respect of current or in prior plan years have been either paid or accrued on the aggregate, would have a Company Material Adverse Effect, and (iv) there balance sheet of the Company. There are no pending, threatened or to the Company's knowledge threatenedanticipated investigations, suits/proceedings or claims (other than routine claims for benefits) by, on behalf of or against, against any of the Company Plans or any trusts related thereto or to the knowledge of the Company are there any facts that could rise to any liability in the event of such investigation, suit, proceeding or claim.
(d) Except as set forth on Schedule 4.15(d), neither the Company nor any ERISA Affiliate, nor any Company Plan, nor any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection with which wouldthe Company or any ERISA Affiliate, any Company Plan, any such trust, or any trustee or administrator thereof, or any party dealing with any Company Plan or any such trust could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material tax imposed pursuant to Section 4975, 4976 or 4980B of the Code. Except as set forth on Schedule 4.15(d), no amounts payable under the Company Plans will, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning fail to be deductible for federal income tax purposes by virtue of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 28OG of the Code. Except as set forth on Schedule 4.15(d), no Company Plan provides death or medical benefits (whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGCinsured), which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With with respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer employees of the Company or any ERISA Affiliate to severance pay, unemployment compensation beyond their retirement or any other payment, termination of service other than (i) coverage mandated by applicable law or (ii) accelerate the time of payment or vesting or increase the amount of compensation due death benefits under any such "employee or officer.pension plan," as that term is defined in Section 3(2)
Appears in 2 contracts
Samples: Merger Agreement (Uici), Merger Agreement (Healthplan Services Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each Each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentivedeferred compensation, stock option (or other equity-based), severanceseverance or other plan or written agreement relating to employment, change in controlcompensation or fringe benefits for employees, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored contributed to by the Transferred Company or its subsidiaries or any trade or business(collectively, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") isis listed in the Transferred Company Disclosure Memorandum, is in substantial compliance with all applicable laws and has been administered and operated in all material respects in accordance with its terms and in compliance terms.
(including the making of governmental filingsb) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans Each Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code Code, has been determined by received a favorable determination letter from the Internal Revenue Service IRS or is still within the remedial amendment period, as described in Section 401(b) of the Code, for such Plan and, to the knowledge of Sellers or Transferred Company, no event has occurred and no condition exists which could reasonably be so qualified, (iii) no expected to result in the revocation of any such determination. No event which constitutes a "reportable event," (as such term is defined in Section 4043(c) of ERISA (ERISA) for which the 30-day notice requirement to has not been waived by the Pension Benefit Guaranty Corporation (the "PBGC") has not been waived), has occurred with respect to any Plan. No Plan that is subject to Title IV of ERISA has been terminated or is or has been the subject of termination proceedings pursuant to Title IV of ERISA. Full payment has been made of all amounts which presents a risk of liability to any governmental entity or other person which, individually or in Transferred Company was required under the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any terms of the Plans to have paid as contributions to such Plans on or prior to the date hereof (excluding any trusts related thereto amounts not yet due) and no Plan which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a subject to Part 3 of Subtitle B of Title I of ERISA has incurred any "multiemployer planaccumulated funding deficiency" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effectwaived.
(c) With respect Neither the Sellers, Transferred Company nor to each Plan that is subject to Title IV the knowledge of Sellers or Transferred Company, any other "disqualified person" or "party in interest" (as defined in Section 4975(e)(2) of the Code and Section 3(14) of ERISA, (i) the Company respectively), has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities engaged in respect of the accrued benefits as set forth any transaction in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to connection with any Plan which has resulted or that could reasonably be expected to result in the imposition of a lien or the posting material penalty pursuant to Section 502(i) of a bond or other security under ERISA, damages pursuant to Section 409 of ERISA or a tax pursuant to Section 4975(a) of the Code Code. Transferred Company has not maintained any Plan (other than a Plan which would have a is intended to be "qualified" within the meaning of Section 401(a) of the Code) which provides benefits with respect to employees or former employees of Transferred Company Material Adverse Effectfollowing their termination of service with such Transferred Company (other than as required pursuant to Section 601 of ERISA). Each Plan subject to the requirements of Section 601 of ERISA has been operated in substantial compliance therewith.
(ed) Except as provided for in this Agreement or as disclosed set forth in the Transferred Company Disclosure LetterMemorandum, the consummation no individual shall accrue or receive additional benefits, service or accelerated rights to payment of benefits as a direct result of the transactions contemplated by this Agreement will Agreement. To the knowledge of Sellers, no material liability, claim, investigation, audit, action or litigation has been incurred, made, commenced or, to the knowledge of Sellers, threatened, by or against any Plan or Transferred Company with respect to any Plan (other than for benefits payable in the ordinary course and PBGC insurance premiums).
(e) No Plan is a "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) and Transferred Company has not been obligated to contribute to any multiemployer plan. No material liability has been, or could reasonably be expected to be, incurred under Title IV of ERISA (iother than for benefits payable in the ordinary course or PBGC insurance premiums) entitle any current or former employee Section 412(f) or officer (n) of the Company or Code by any entity required to be aggregated with Transferred Company, pursuant to Section 4001(b) of ERISA Affiliate to severance pay, unemployment compensation or any other payment, and/or Section 414(b) or (iic) accelerate of the time Code (and the regulations promulgated thereunder) with respect to any "employee pension benefit plan" (as defined in Section 3(2) of payment or vesting or increase the amount of compensation due any such employee or officerERISA).
Appears in 1 contract
Samples: Stock Purchase Agreement (Florida Rock Industries Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent Section 3.10(a)(1) of the Company Disclosure Letter contains a true and complete list of all the Purchaser, (i) each "individual or group employee benefit plan" plans or arrangements of any type (as defined including plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)), and all other employee benefitsponsored, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored contributed to by the Company or its subsidiaries or any trade or business, whether or not incorporated, that which together with the Company would be deemed a "“single employer" ” within the meaning of Section 4001 414(b), (c) or (m) of the Code or Section 4001(b)(1) of ERISA (an "a “Company ERISA Affiliate"”) (“Company Benefit Plans”), and Section 3.10(a)(2) of the Company Disclosure Letter lists each material individual employment, severance or similar agreement with respect to which the Company or any Company ERISA Affiliate has any current or future obligation or liability (“Company Employee Agreement”). With respect to each Company Benefit Plan, the Company has made available to Parent a true, correct and complete copy of such Company Benefit Plan, and, to the extent applicable, trust agreements, insurance contracts and other funding vehicles, the most recent Annual Reports (Form 5500 Series) and accompanying schedules, summary plan descriptions, and the most recent determination letter from the Internal Revenue Service. The Company has made available to Parent a true, correct and complete copy of each Company Employee Agreement.
(b) With respect to each Company Benefit Plan: (i) if intended to qualify under Section 401(a) or 401(k) of the Code, such Company Benefit Plan satisfies the requirements of such sections and has received a favorable determination letter from the Internal Revenue Service with respect to its qualification, and its related trust has been determined to be exempt from tax under Section 501(a) of the Code and, to the knowledge of the Company, nothing has occurred since the date of such letter to adversely affect such qualification or exemption; (ii) each Company Benefit Plan has been administered in substantial compliance with its terms and applicable Law, except for any noncompliance with respect to any such plan that could not reasonably be expected to result in a Material Adverse Effect on the benefit Company; (iii) neither the Company nor any Company ERISA Affiliate has engaged in, and the Company and each Company ERISA Affiliate do not have any knowledge of any employee Person that has engaged in, any transaction or former employee acted or failed to act in any manner that would subject the Company or any Company ERISA Affiliate to any liability for a breach of fiduciary duty under ERISA that could reasonably be expected to result in a Material Adverse Effect on the Company; (iv) no disputes are pending or, to the knowledge of the Company or any of its Company ERISA Affiliates Affiliate, threatened other than ordinary claims for benefits; (v) neither the "Plans") isCompany nor any Company ERISA Affiliate has engaged in, and the Company and each Company ERISA Affiliate do not have any knowledge of any Person that has engaged in, any transaction in violation of Section 406(a) or (b) of ERISA or Section 4975 of the Code for which no exemption exists under Section 408 of ERISA or Section 4975(c) of the Code or Section 4975(d) of the Code that could reasonably be expected to result in a Material Adverse Effect on the Company; (vi) all contributions due have been operated in accordance with its terms made on a timely basis; and in compliance (including the making of governmental filingsvii) with all applicable Laws, including ERISA except for defined benefit plans (if applicable) and the applicable provisions Company’s Change of Control Plan, such Company Benefit Plan may be terminated on a prospective basis without any continuing liability for benefits other than benefits accrued to the date of such termination. All contributions made or required to be made under any Company Benefit Plan meet the requirements for deductibility under the Code, except for failures that would not, individually and all contributions which are required and which have not been made have been properly recorded on the books of the Company or in the aggregate, have a Company Material Adverse EffectERISA Affiliate.
(c) No Company Benefit Plan (including for such purpose, any employee benefit plan described in Section 3(3) of ERISA which the Company or any Company ERISA Affiliate maintained, sponsored or contributed to within the six-year period preceding the Merger I Effective Time) is (i) a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA), (ii) each of the Plans intended to be "qualified" a “multiple employer plan” (within the meaning of Section 401(a413(c) of the Code has been determined by the Internal Revenue Service to be so qualified, Code) or (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code). No event has occurred with respect to the Company or a Company ERISA Affiliate in connection with which the Company could be subject to any liability, whether lien or not waived encumbrance with respect to any Company Benefit Plan, except for regular contributions and benefit payments in the ordinary course of plan business.
(d) Except as set forth in Section 3.10(d) of the Company Disclosure Letter or, in the case of clause (ii) below, as previously provided to Parent, (i) no present or former employees of the Company or any of its Subsidiaries are covered by any Company Employee Agreements or Company Benefit Plans that provide or will provide any severance pay, post-termination health or life insurance benefits (except as required pursuant to Section 4980B of the Code or Part 6 of Title I of ERISA) or any similar benefits, (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV execution of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, nor the consummation of the transactions contemplated by this Agreement will not (i) entitle hereby shall cause any current payments or former employee benefits to any employee, officer or officer director of the Company or any ERISA Affiliate of its Subsidiaries to severance paybe either subject to an excise Tax or non-deductible to the Company under Sections 4999 and 280G of the Code, unemployment compensation respectively, whether or any not some other payment, subsequent action or (ii) accelerate the time of event would be required to cause such payment or benefit to be triggered, and (iii) neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall result in, cause the accelerated vesting or delivery of, or increase the amount or value of, any payment or benefit to any employee, officer or director of compensation due the Company or any of its Subsidiaries, whether or not some other subsequent action or event would be required to cause such employee payment or officerbenefit to be triggered, accelerated, delivered or increased.
Appears in 1 contract
Samples: Merger Agreement (Forest Oil Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent set forth in the Representing Party's SEC Reports or as would not have a Material Adverse Effect on the Representing Party and the Purchaserits Subsidiaries, taken as a whole, (i) all Employee Benefit Plans (other than any Employee Benefit Plan that is a "multiemployer plan" within the meaning of Section 3(37) of ERISA (a "Multiemployer Plan")) of the Representing Party are in material compliance with all applicable requirements of Law, including ERISA and the Code, and (ii) neither the Representing Party nor any of its Subsidiaries nor any ERISA Affiliate has any liabilities or obligations with respect to any such Employee Benefit Plans, whether accrued, contingent or otherwise, that are not otherwise reflected on the Representing Party's financial statements, nor to the best knowledge of the Representing Party, are any such liabilities or obligations expected to be incurred. Except as described in the Representing Party's (or any of its Subsidiaries') SEC Reports or as set forth in Section 4.7(a) of the Representing Party's Disclosure Schedule, the execution and delivery of, and performance of the transactions contemplated by this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Employee Benefit Plan of the Representing Party that will or may result in acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee. The only severance agreements or severance policies applicable to the Representing Party or any of its Subsidiaries are the agreements and policies specifically described in Section 4.7(a) of the Representing Party's Disclosure Schedule.
(b) With respect to each of its Plans, the Representing Party has heretofore made available to the other Representing Party complete and correct copies of each of the following documents, as applicable: (i) a copy of the Plan and any amendments thereto; (ii) a copy of the most recent annual report; (iii) a copy of the most recent actuarial report; (iv) a copy of the most recent Summary Plan Description and all material modifica tions; (v) a copy of the trust or other funding agreement and any amendments thereto; and (vi) the most recent determination letter received from the Internal Revenue Service (the "IRS") with respect to each Plan that is intended to be qualified under Section 401 of the Code and all notices of reportable events received following receipt of such letter. Each Representing Party will deliver to the other Representing Party a copy of each Foreign Plan within thirty days following the date hereof.
(c) Section 4.7(c) of the Representing Party's Disclosure Schedule sets forth a list of each employee benefit planof the Representing Party (or any Subsidiary) who is a party to any agreement (whether written or oral) with respect to such person's employment by the Representing Party or a Subsidiary, other than offer letters which do not have guaranteed periods of employment and statutory employment agreements under foreign Laws, and which provide for annual compensation in excess of $100,000. The Representing Party has made available to the other Representing Party a complete and correct copy of each such written employment agreement and a complete and correct summary of each such oral agreement.
(d) No liability under Title IV of ERISA has been incurred by the Representing Party or any ERISA Affiliate within the past six years that has not been satisfied in full. To the best knowledge of the Representing Party, no condition exists that presents a material risk to the Representing Party, any of its Subsidiaries or any ERISA Affiliate of incurring a liability under such Title that is reasonably likely to have a Material Adverse Effect on the Representing Party. The Pension Benefit Guaranty Corporation has not instituted proceedings to terminate any of the Employee Benefit Plans, and, to the knowledge of the Representing Party, no condition exists that presents a material risk that such proceedings will be instituted. Except as would not have a Material Adverse Effect on the Representing Party, with respect to each of the Employee Benefit Plans that is subject to Title IV of ERISA, the present value of accrued benefits under such Employee Benefit Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Employee Benefit Plan's actuary with respect to such Employee Benefit Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Employee Benefit Plan allocable to such accrued benefits, and there have been no changes since such latest valuation date which would cause the present value of such accrued benefits to exceed the current value of such assets. None of the Employee Benefit Plans or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in Section 3(3) 302 of ERISA and Section 412 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"Code)), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporatedwaived, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee as of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions last day of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) most recent fiscal year of each of the Employee Benefit Plans ended prior to the date of this Agreement. None of the Employee Benefit Plans is a Multiemployer Plan. To the knowledge of the Representing Party each of the Employee Benefit Plans that is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by is so qualified and the Internal Revenue Service to be so qualified, (iiitrusts maintained thereunder are exempt from taxation under Section 501(a) no "reportable event," of the Code. Except as such term is defined set forth in Section 4043(c4.7(d) of ERISA the ASARCO Disclosure Schedule, no Employee Benefit Plan provides benefits, including without limitation death or medical benefits (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has whether or not been waivedinsured), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity current or former employees after retirement or other person whichtermination of service (other than coverage mandated by applicable Law or benefits, individually the full cost of which is borne by the current or in the aggregate, would have a Company Material Adverse Effect, and (iv) there former employee). There are no pendingmaterial pending or threatened claims by or on behalf of any Employee Benefit Plan, by any employee or beneficiary covered under any such Employee Benefit Plan, or to the Company's knowledge threatened, claims otherwise involving any such Employee Benefit Plan (other than routine claims for benefits) by). No prohibited transaction has occurred with respect to any Employee Benefit Plan that would result, on behalf of directly or againstindirectly, any of the Plans or any trusts related thereto which would, individually or in the aggregateimposition of an excise Tax or other liability under the Code or ERISA, except for such a Tax or other liability that would not have a Company Material Adverse Effect. No Plan is Except as would not have a "multiemployer plan" (within Material Adverse Effect on the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required Representing Party, with respect to contribute to any multiemployer plan.
each Foreign Plan: (i) No all amounts required to be reserved on account of each Foreign Plan has incurred an "accumulated fund deficiency" (as defined have been so reserved in Section 302 of ERISA or Section 412 of accordance with reasonable accounting practices prevailing in the Code)country where such Foreign Plan is established, whether or not waived and (ii) neither each Foreign Plan required to be registered with a Governmental Entity has been registered, has been maintained in good standing with the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when dueappropriate Governmental Entities, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change maintained and operated in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effectaccordance with its terms and applicable Law.
(e) Except as provided for set forth in this Agreement Section 4.7(a) and (d) of the ASARCO Disclosure Schedule no director or officer or other employee of such Representing Party will become entitled to any termination, retirement, severance or similar payment, benefit or enhanced or accelerated benefit (including any acceleration of vesting or lapse of restrictions, repurchase rights or obligations with respect to any employee stock option or other benefit under any stock option plan or incentive or compensation plan or arrangement) as disclosed in the Disclosure Letter, the consummation a result of the transactions contemplated by this Agreement will not (ieither standing alone or in conjunction with any additional or subsequent events).
(f) entitle any current or former employee or officer Except as set forth in Section 4.7(f) of the Company ASARCO Disclosure Schedule, any amount or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of any of the transactions contemplated by this Agreement by any employee, officer or director of the Representing Party or any ERISA Affiliate to severance pay, unemployment of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employee benefit plan or other compensation arrangement currently in effect would not be characterized as an "excess parachute payment" or any other a "parachute payment, or " (iias such terms are defined in Section 280G(b)(1) accelerate of the time of payment or vesting or increase the amount of compensation due any such employee or officerCode).
(g) As used in this Agreement
Appears in 1 contract
Samples: Merger Agreement (Phelps Dodge Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 4.9(a) of the Purchaser, (i) Seller Disclosure Letter lists each "employee benefit plan" (as defined in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other material employee benefitbenefit(including, without limitation, any non-qualified plans), bonus, deferred compensation, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) control and fringe benefit plans (whether maintained for the benefit of, or not subject contributed to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporatedincorporated (an "ERISA Affiliate"), that would be deemed a "single employer" within the meaning of Section section 4001 of ERISA (an "ERISA Affiliate")ERISA, for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is). Seller has heretofore delivered to Purchaser true, correct and has been operated in accordance with its terms and in compliance (including complete copies of each of the making of governmental filings) with all applicable LawsPlans, including all amendments to date.
(b) Each of the Plans that is subject to ERISA complies with ERISA and the applicable provisions of the Code, and has been administered in accordance with ERISA and, where applicable, the Code, except for failures any such violations that would not, individually or in the aggregate, not have a Company Material Adverse Effect, (ii) each . Each of the Plans intended to be "qualified" within the meaning of Section section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualifiedqualified and Seller knows of no fact or set of circumstances that would materially adversely affect such qualification prior to and including the close of business on the day immediately preceding the Closing Date. Except as set forth in Section 4.9(b) of the Seller Disclosure Letter, (iii) no none of the Plans is subject to Title IV of ERISA. No "reportable event," ", as such term is defined in Section 4043(csection 4043(b) of ERISA (for which the 30-30 day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") Board has not been waived), ) has occurred with respect to any Plan that is subject to Title IV Plan, except where the occurrence of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, such event would not have a Company Material Adverse Effect, and (iv) there . There are no pendingpending or, or to the Company's knowledge threatenedbest Knowledge of Seller, threatened claims (other than routine claims for benefits) ), actions, suits or proceedings by, on behalf of or against, against any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has against Seller or the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 respect of the Code)Plans, whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGCany such claims, which payments have been made when dueactions, and no events have occurred which are suits or proceedings that would not reasonably be likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With Except as set forth in Section 4.9(c) of the Seller Disclosure Letter, no Plan provides benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to each Plan that is subject to Title IV any employees or former employees of ERISA, the Company beyond their retirement or other termination of service (other than (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereofcoverage mandated by applicable law, (ii) death benefits or retirement benefits under any "employee pension plan," as that term is defined in section 3(2) of ERISA, or (iii) benefits the assets and liabilities full cost of which is borne by the current or former employee (or his or her beneficiary).
(d) No Plan has incurred an "Accumulated Funding Deficiency" (as defined in respect section 302(a) of ERISA or Section 412(a) of the accrued benefits Code), whether or not waived.
(e) Except as set forth in Section 4.9(e) of the most recent actuarial valuation report prepared by Seller Disclosure Letter, none of the Company or any ERISA Affiliate has incurred or would incur a "withdrawal" or "partial withdrawal", as defined in sections 4203 and 4205 of ERISA, from any Plan that has resulted or would result in a withdrawal liability of the Company or any ERISA Affiliate under such Plan's actuary fairly presented , except where the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status occurrence of any such Plan which would, individually or in the aggregate, event would not have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent SCHEDULE 2.14 discloses all written and the Purchaser, (i) each unwritten "employee benefit planplans" (as defined in within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all any other employee written and unwritten profit sharing, pension, savings, deferred compensation, fringe benefit, bonusinsurance, incentivemedical, medical reimbursement, life, disability, accident, post-retirement health or welfare benefit, stock option (or other equity-based)option, stock purchase, sick pay, vacation, employment, severance, change in controltermination or other plan, welfare agreement, contract, policy, trust fund or arrangement (including post-retirement medical and life insurance) and fringe benefit plans (each, a "Company Plan"), whether or not subject to ERISA) funded, maintained or sponsored by the Company or its subsidiaries or any trade or businessto which the Company contributed in the six (6) years preceding the date of this Agreement. Copies of all written Company Plans and description of all unwritten Company Plans have been made available to Buyer. Each Company Plan has been maintained in substantial compliance with all applicable laws, whether or not incorporatedordinances, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate")rules, for the benefit regulations, permits, orders, writs, judgments, injunctions, decrees, determinations and awards of any employee agency, government, or former employee of arbitrator. Company has no material liability with respect to any Company Plan other than for benefits, obligations and liabilities in the Company or any of its ERISA Affiliates (the "Plans") is, ordinary course and has been operated in accordance with its the terms and in compliance thereof.
(including the making of governmental filingsa) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures With respect to each Company Plan that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended purports to be "qualified" within the meaning of a qualified plan under Section 401(a) of the Code and exempt from United States federal income tax under Section 501(a) of the Code (a "Qualified Plan"), a current determination letter (or opinion or notification letter, if applicable) has been determined received from the IRS. No Qualified Plan has been amended since the date of the most recent such letter except as required or permitted by law or in a manner which does not adversely effect the Internal Revenue Service tax-qualified status of the plan. Neither Company, nor any fiduciary of any Qualified Plan, nor any agent of any of the foregoing, has done or failed to be so qualified, do anything that would adversely affect the qualified status of a Qualified Plan or the qualified status of any related trust.
(iiib) There are no "reportable event," as such term is defined in Company Plans that are multiemployer plans within the meaning of Section 4043(c3(37) or Section 4001(a)(3) of ERISA (for which a "Multiemployer Plan"). No employees of Company have at any time been covered by a Multiemployer Plan, nor has the 30-day notice requirement Company withdrawn from any Multiemployer Plan or incurred any withdrawal liability to or under any Multiemployer Plan.
(c) Except as set forth on SCHEDULE 2.14, all contributions and other payments to be made to each Company Plan under the Pension Benefit Guaranty Corporation terms of such Company Plan, ERISA, the Internal Revenue Code ("PBGCCode") has not or any other applicable law have been waived), has occurred timely made and all contributions made have been fully deductible under the Code. The books of the Company properly reflect in accordance with GAAP all material amounts required to be accrued as liabilities. There are no contributions to be made with respect to any Company Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or have not yet been accrued other person which, individually or than contributions in the aggregateordinary course in accordance with the terms of such Company Plan which are identified on SCHEDULE 2.14.
(d) In the case of each Company Plan, would have a Company Material Adverse Effect, and (iv) there are is no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" accumulated funding deficiency (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 4971 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there deficiency has been no adverse change in the funded status of waived, or any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effectunfunded liability.
(e) Except as provided for set forth on SCHEDULE 2.14, no non-exempt "prohibited transactions" (as defined in this Agreement or as disclosed in the Disclosure Letter, the consummation Section 4975(c)(1) of the transactions contemplated by this Agreement will not (iCode) entitle any current or former employee breaches of fiduciary duty involving the Company, Sellers, or a director or officer of the Company, have occurred with respect to any of the Company Plans.
(f) There is no contract, agreement, or benefit arrangement covering any agent or employee of the Company which, individually or collectively, could give rise to the payment of any amount which would constitute an "excess parachute payment" (within the meaning of Section 280G of the Code).
(g) Neither the Company nor any of its Affiliates maintains any Company Plan that provides severance pay or medical benefits to one or more former employees (including retirees), or provides for post-retirement benefits to present or former employees, other than benefits that are required to be provided pursuant to COBRA or state law conversion rights.
(h) There are no proceedings or lawsuits pending or to the knowledge of the Company or Sellers, threatened with respect to (i) any ERISA Affiliate to severance pay, unemployment compensation or any other paymentCompany Plan, or (ii) accelerate any Fiduciary of such plan (within the time meaning of payment Section 3(21)(A) of ERISA) brought on behalf of any participant, beneficiary or vesting Fiduciary thereunder, or increase the amount of compensation due by any such employee or officerGovernmental Entity.
Appears in 1 contract
Samples: Purchase Agreement (Outsourcing Services Group Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 3.16(a) of the Purchaser, (i) Disclosure Schedule lists each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other material employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) bonus and fringe benefit plans (whether maintained for the benefit of, or not subject to ERISA) maintained or sponsored which there is an obligation to contribute to by the Company or its subsidiaries or any trade or business, whether or not incorporatedincorporated (an "ERISA Affiliate"), that that, together with the Company would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate")or Section 414 of the Code, for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (a "Plan" and collectively, the "Plans"). Seller has made available to Buyer copies of each of the Plans including all amendments to date, and true and correct copies of the most current IRS Form 5500s and any other form or filing required to be submitted to any governmental agency with respect to such Plans.
(b) isExcept as set forth in Section 3.16(b) of the Disclosure Schedule, (i) each of the Plans complies and has been operated in accordance all material respects with its terms and in compliance (including the making of governmental filings) with all applicable Laws, Laws including ERISA and the applicable provisions of Code as defined below (and the Coderegulations and rulings thereunder), except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, and (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code"), has been determined by the Internal Revenue Service (the "IRS") to be so qualified, (iii) qualified and Seller knows of no "reportable event," as fact or set of circumstances that would adversely affect such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement qualification prior to the Pension Benefit Guaranty Corporation ("PBGC") Closing. Seller has not been waived), has occurred made available to Buyer copies of the most recent determination letter issued by the Internal Revenue Service with respect to any Plan that each Plan. None of the Plans is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there ERISA. There are no pendingpending or, or to the best knowledge of Seller or Company's knowledge threatened, threatened material claims (other than routine claims for benefits) by, on behalf of or against, against any of the Plans or any trusts related thereto thereto. To the best knowledge of Seller and Company, there are no audits or investigations by any governmental agency which would, individually relate directly or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments indirectly to the PBGCPlans. The Company has made, which or will have made prior to Closing, any payments have been made when due, and no events have occurred which are reasonably likely or contributions required with respect to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse EffectPlans.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company execution and delivery of this Agreement, nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement hereby will not (i) entitle result in any current or former employee or officer of the Company or any ERISA Affiliate to severance paypayment (including, without limitation, severance, unemployment compensation compensation, golden parachute or otherwise) becoming due from Company under any other paymentof Company's Plans, (ii) increase any benefits otherwise payable under any of Company's Plans, or (iiiii) accelerate result in the acceleration of the time of payment or vesting or increase the amount of compensation due any such benefits to any extent. No event has occurred which will result in material liability to Company in connection with any employee benefit plan established, maintained, contributed to or officerto which there has been an obligation to contribute (currently or previously) by Company, or an ERISA Affiliate.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except Section 5.9(a) of the Company Disclosure Schedule lists, as previously disclosed of the date of this Agreement, all material Benefit Plans and separately identifies each material Foreign Benefit Plan. With respect to each Benefit Plan, if applicable, the Company has made available to Parent true and the Purchaser, complete copies of (i) each "employee benefit plan" the plan document (as defined in and, if applicable, related trust or funding agreements or insurance policies), (ii) the most recent summary plan description or prospectus and any summary of material modifications, (iii) the most recent annual report (including all schedules), (iv) if the Benefit Plan is intended to qualify under Section 3(3401(a) of the Employee Retirement Income Security Act of 1974Code, as amended ("ERISA"))the most recent determination, advisory, or opinion letter received from the IRS, and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare v) the most recent actuarial reports and financial statements.
(including post-retirement medical and life insuranceb) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, Each Benefit Plan is and has been operated in accordance material compliance with its terms and in compliance (including the making of governmental filings) with all applicable LawsLaw, including ERISA and the applicable provisions Code and has been administered in all material respects in accordance with its terms. There are no pending or, to the Knowledge of the CodeCompany, except threatened claims (other than claims for failures that would not, individually or benefits in the aggregateordinary course), lawsuits, charges, complaints, grievances, investigations, audits, proceedings or arbitrations that have a Company Material Adverse Effect, (ii) each of the Plans been asserted or instituted with respect to any Benefit Plan. Each Benefit Plan intended to be "qualified" within the meaning of qualified under Section 401(a) of the Code has been determined by is the Internal Revenue Service to be so qualifiedsubject of an unrevoked favorable determination, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which advisory, or opinion letter from the 30-day notice requirement IRS, and, to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)Knowledge of the Company, nothing has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in since the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any date of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could most recent such determination that would reasonably be anticipated expected to result in any claims being made against Purchaser by the PBGC, in any adversely affect such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effectqualification.
(c) With respect to each Neither the Company nor any Subsidiary or ERISA Affiliate of the Company (i) maintains, sponsors or contributes to, or has within the past six (6) years maintained, sponsored or contributed to, a Benefit Plan that is a “defined benefit plan” (as defined in ERISA Section 3(35)) or otherwise subject to Title IV of ERISA, (iii) the Company has provided any material liability with respect to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior any “defined benefit plan,” whether or not subject to the date hereofERISA, (iiiii) the assets has an “obligation to contribute” (as defined in ERISA Section 4212) to a Benefit Plan that is a “multiemployer plan” (as defined in ERISA Sections 4001(a)(3) and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects3(37)(A)), and (iiiiv) since has any liability, contingent or otherwise, under Title IV of ERISA with respect to a Benefit Plan. No Benefit Plan subject to ERISA holds securities issued by the date Company or any of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectits current ERISA Affiliates.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution Subsidiary of the Company sponsors, maintains or payment contributes to any Plan which has resulted plan, program or could result in the imposition of a lien or the posting of a bond arrangement that provides for post-retirement or other security under ERISA or the Code which would have a Company Material Adverse Effectpost-employment welfare benefits, including life insurance (other than health care continuation coverage as required by Law).
(e) Except as provided for in contemplated by this Agreement, the execution and delivery of this Agreement or as disclosed in the Disclosure Letter, and the consummation of the transactions contemplated by this Agreement will not (either alone or in combination with another event) (i) entitle result in any current or former employee or officer of material payment from the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other paymentof its Subsidiaries becoming due, or materially increase the amount of any compensation due, to any Service Provider, (ii) accelerate increase any benefits otherwise payable under any Benefit Plan, (iii) result in the acceleration of the time of payment or vesting of any compensation or increase benefits from the Company or any of its Subsidiaries to any Service Provider, or (iv) limit or restrict the right of the Company to merge, amend or terminate any of the Benefit Plans. Without limiting the generality of the foregoing, no amount payable to any Service Provider (whether in cash or property or as a result of accelerated vesting) as a result of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement (either alone or together with any other event) under any Benefit Plan or other compensation due arrangement would be nondeductible under Sections 280G of the Code. Neither the Company nor any Company Subsidiary has any obligation to compensate any Service Provider for any excise taxes incurred by such Service Provider, including under Sections 409A and 4999 of the Code.
(f) To the Knowledge of the Company, (i) each Foreign Benefit Plan and related trust, if any, complies with and has been administered in material compliance with its terms and the Laws of the applicable foreign country, (ii) each Foreign Benefit Plan which, under the Laws of the applicable foreign country, is required to be registered or approved by any Governmental Entity, has been so registered or approved, and (iii) each Foreign Benefit Plan intended to qualify for special tax treatment meets all the requirements for such treatment. The Company and its Subsidiaries have complied in all material respects with all applicable Laws regarding participation in and contributions required to be made to any Mandated Benefit Plans.
(g) To the Knowledge of the Company, each Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Code Section 409A(d)(1)) has been operated since December 31, 2016 in compliance with applicable guidance under Code Section 409A and has been documented in accordance with Section 409A since January 1, 2016.
(h) The parties acknowledge that certain payments have been made or are to be made and certain benefits have been granted or are to be granted according to employment compensation, severance and other employee benefit plans of the Company and the Company Subsidiaries or officerpursuant to other arrangements with the Company and the Company Subsidiaries, including the Plans, to holders of Company Common Stock and other securities of the Company (the “Covered Securityholders”) (with all such plans and arrangements being collectively referred to as the “Company Arrangements”). All such amounts payable under the Company Arrangements (i) have been or are being paid or granted as compensation for past services performed, future services to be performed, or future services to be refrained from performing, by the Covered Securityholders (and matters incidental thereto) and (ii) were not, and are not, calculated based on the number of shares tendered or to be tendered into the Offer by the applicable Covered Securityholder. The adoption, approval, amendment or modification of each Company Arrangement has been approved as an employment compensation, severance or other employee benefit arrangement solely by independent directors of the Company in accordance with the requirements of Rule 14d—10(d)(2) under the Exchange Act and the instructions thereto and the “safe harbor” provided pursuant to Rule 14d—10(d)(2) is otherwise applicable thereto as a result of the taking prior to the execution of this Agreement of all necessary actions by the board of directors of the Company, the compensation committee of the board of directors of the Company (the “Company Compensation Committee”) or its independent directors. A true and complete copy of any resolutions of any committee of the Company Board reflecting any approvals and actions referred to in the preceding sentence and taken prior to the date of this Agreement has been made available to Parent prior to the execution of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Ipass Inc)
Employee Benefit Plans; ERISA. Except as set forth on Schedule 3.9, to the Company's best knowledge:
(a) Except as previously disclosed to Parent and the Purchaser, (i) each "There are no material employee benefit plan" plans, arrangements, contracts or agreements (as defined including employment agreements and severance agreements) of any type (including but not limited to plans described in Section 3(3section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or Company, any of its subsidiaries Subsidiaries or any trade or business, whether or not incorporatedincorporated (an "ERISA Affiliate"), that together with the Company would be deemed a "single employer" within the meaning of Section 4001 section 4001(b)(15) of ERISA (an "ERISA Affiliate")ERISA, for the benefit of any employee or former employee of with respect to which the Company or any of its ERISA Affiliates Subsidiaries has or may have a liability, other than those listed on Schedule 3.9 (the "Benefit Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed any formal plan or commitment, whether legally binding or not, to make create any contribution additional Benefit Plan or payment to modify or change any existing Benefit Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which that would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle affect any current or former employee or officer terminated employee of the Company or any ERISA Affiliate Subsidiary.
(b) With respect to severance payeach Benefit Plan: (i) if intended to qualify under section 401(a), unemployment compensation 401(k) or any other payment403(a) of the Internal Revenue Code of 1986, or as amended, and the rules and regulations promulgated thereunder (the "Code"), such plan so qualifies, and its trust is exempt from taxation under section 501(a) of the Code; (ii) accelerate such plan has been administered in all material respects in accordance with its terms and applicable law; (iii) no breaches of fiduciary duty have occurred which might reasonably be expected to give rise to material liability on the time part of payment or vesting or increase the amount Company; (iv) no disputes are pending, or, to the knowledge of compensation due any such employee or officer.the Company, threatened that might reasonably be expected to give rise to material liability on the part of the Company; (v) no prohibited transaction (within the meaning of Section 406 of ERISA) has occurred that might reasonably be expected to give rise to material liability on the part of the
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the PurchaserFMST in writing, (i) each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-equity- based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries AP or any trade or business, whether or not incorporated, that would be deemed a "single employer" member of Distribution's controlled group of entities (within the meaning of Section 4001 of ERISA Code Sections 414(b), (c), (m) or (o)) (each, an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company AP or any of its ERISA Affiliates (individually, a "Plan," and collectively, the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Lawslaws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans presently maintained by AP and intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would may reasonably be expected to have a Company Material Adverse Effect, and (iv) there are no pending, pending or threatened in writing or to the CompanyAP's knowledge otherwise threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts trust related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor to the knowledge of AP has the Company AP or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an a material "accumulated fund funding deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), ) whether or not waived and (ii) neither the Company AP nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company AP or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser AP by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan Plan, if any, that is subject to Title IV of ERISA, (i) the Company AP has provided to Parent and the Purchaser FMST copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.the
Appears in 1 contract
Samples: Merger Agreement (Finishmaster Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each "employee benefit plan" (as defined in Section 3(34.9(a) of the Employee Retirement Income Security Act Company Disclosure Schedule sets forth a correct and complete list of 1974, as amended all Benefit Plans and Benefit Agreements.
("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insuranceb) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, Each Benefit Plan that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans is intended to be "qualified" within the meaning of qualified under Section 401(a) of the Code Code, and each trust that is related to a Benefit Plan and intended to be Tax exempt under Section 501(a) of the Code, has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in qualified under Section 4043(c401(a) of ERISA (for which the 30-day notice requirement to Code or exempt from taxation under Section 501(a) of the Pension Benefit Guaranty Corporation ("PBGC") Code or the Company has not been waived), has occurred received an opinion letter from the Internal Revenue Service with respect to the compliance in form of such Benefit Plan documents with Section 401(a) of the Code and, to the Knowledge of the Company, nothing has occurred that would adversely affect the qualification or Tax exemption of any such Benefit Plan that or related trust. Each Benefit Plan has been administered in all material respects in accordance with its terms. The Company, its Subsidiaries and all the Benefit Plans are all in compliance in all material respects with the applicable provisions of ERISA, the Code and all other applicable Laws, including Laws of foreign jurisdictions. To the Knowledge of the Company, with respect to each Benefit Plan and Benefit Agreement, the Company has provided to participants all material communications or disclosures required by Law or by the terms of such Benefit Plan or Benefit Agreement.
(c) No Benefit Plan or employee benefit plan maintained by an ERISA Affiliate (i) is subject to Title IV of ERISA which presents or Section 412 of the Code or is a risk multiemployer pension plan (within the meaning of liability Section 3(37) or 4001(a)(3) of ERISA) or a multiple employer plan (within the meaning of Section 4063 of ERISA) or (ii) provides for post-retirement or other post-employment welfare benefits (other than health care continuation coverage as required by applicable Law). Neither the Company nor any other Person that, together with the Company, is treated as a single employer under Section 414 of the Code (each a “Commonly Controlled Entity”) has, within the prior six (6) years, sponsored, maintained, contributed to or been required to contribute to any governmental entity such plan.
(d) Except as may be required by applicable Law, or other person whichas contemplated under this Agreement, individually neither the Company nor any of its Subsidiaries has any announced plan or commitment to create any additional Benefit Plans which are intended to cover employees or former employees of the Company or any of its Subsidiaries or to amend or modify any existing Benefit Plan which covers or has covered employees or former employees of the Company or any of its Subsidiaries, or to create, amend or modify any Benefit Agreement.
(e) To the extent applicable, correct and complete copies of the following have been delivered or made available to Parent by the Company: (i) all Benefit Plans and Benefit Agreements (including all amendments and attachments thereto); (ii) written summaries of any Benefit Plan and any Benefit Agreement not in the aggregate, would have a Company Material Adverse Effect, and writing; (iii) all related trust documents; (iv) all insurance contracts or other funding arrangements; (v) the most recent annual report (Form 5500) filed with the Internal Revenue Service; (vi) the most recent determination letter from the Internal Revenue Service, if any; and (vii) the most recent summary plan description and any summary of material modification thereto.
(f) There are no investigations, examinations, audits or proceedings by any Governmental Entity with respect to or involving any Benefit Plan or any fiduciary thereof, and to the Knowledge of the Company, there are not any facts that would reasonably be expected to give rise to any such investigation, examination, audit or proceeding. There are no pendingactions, claims, suits or proceedings against or involving any Benefit Plan or Benefit Agreement or asserting any rights or claims to benefits under any Benefit Plan or Benefit Agreement (except claims for benefits payable in the normal operation of the Benefit Plan or Benefit Agreement), and, to the Knowledge of the Company's knowledge threatened, claims there are not any facts that would reasonably be expected to give rise to any such action, claim, suit or proceeding.
(other than routine claims for benefitsg) byWith respect to each Benefit Plan, on behalf (i) (A) there has not occurred prior to the date hereof any prohibited transaction (within the meaning of Section 406 of ERISA or against, Section 4975 of the Code) that could subject the Company or any of the Plans its Subsidiaries or any trusts related thereto which of their respective employees to any material liability and (B) following the date hereof, there will not occur any prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) that could subject the Company or any of its Subsidiaries or any of their respective employees to any liabilities that, in the case of this clause (i)(B), would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived Effect and (ii) neither the Company nor any of its Subsidiaries nor any of their directors, employees or agents has engaged in any transaction or acted in a manner, or failed to act in a manner, that would reasonably be expected to subject the Company or any of its Subsidiaries or any of their respective employees to liability for breach of fiduciary duty under ERISA Affiliate has incurred or any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability other applicable Law.
(h) Section 4.9(h) of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to Disclosure Schedule discloses whether each Benefit Plan and each Benefit Agreement that is subject to Title IV of ERISA, an employee welfare benefit plan is (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereofunfunded or self-insured, (ii) the assets and liabilities funded through a “welfare benefit fund”, as such term is defined in respect Section 419(e) of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respectsCode, and or other funding mechanism or (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectinsured.
(di) Neither None of the execution and delivery of this Agreement, the obtaining of the Company nor any ERISA Affiliate has failed to make any contribution Stockholder Approval or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions Merger or any other Transaction (whether alone or as a result of any termination of employment on or following the Effective Time) will, except as expressly contemplated by this Agreement will not Agreement, (i) entitle any current Participant to severance, termination, retention, change in control or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment similar compensation or any other paymentbenefits, or (ii) accelerate the time of payment or vesting vesting, or trigger any payment or funding (through a grantor trust or otherwise) of, compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to any Benefit Plan or Benefit Agreement or (iii) prohibit any Benefit Plan or Benefit Agreement from being amended or terminated.
(j) Except as would not reasonably be expected to give rise to material liability, the Company and each of its Subsidiaries have correctly classified each individual who performs services for the Company or any of its Subsidiaries as a common law employee, an independent contractor, or a leased employee, as applicable, in accordance with the provisions of each Benefit Plan, and in accordance with ERISA, the Code, and other applicable Laws.
(k) Each Benefit Plan and each Benefit Agreement that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) subject to Section 409A of the Code was, as of January 1, 2005, in good faith compliance with Section 409A of the Code and the then applicable guidance issued by the Internal Revenue Service thereunder (together, the “409A Authorities”). Since December 31, 2008, each Nonqualified Deferred Compensation Plan has remained in documentary and operational compliance with the 409A Authorities. No Participant is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Sections 280G and 409A of the Code)) or interest or penalty related thereto.
(l) Other than payments or benefits that may be made to the Persons listed in Section 4.9(l) of the Company Disclosure Schedule, no amount or other entitlement or economic benefit that could be received (whether in cash or property or the vesting of property) as a result of the execution and delivery of this Agreement, the obtaining of the Company Stockholder Approval or the consummation of the Merger or any other Transaction (alone or in combination with any other event, including as a result of termination of employment on or following the Effective Time) by or for the benefit of any Person who is a “disqualified individual” (as defined in Treasury Regulation Section 1.280G-1) with respect to the Company under any Benefit Plan, Benefit Agreement or otherwise would be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(m) With respect to each Benefit Plan that is an “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), all contributions (including all employer contributions and employee salary reduction contributions) that are due have been made within the time periods prescribed by ERISA and the Code, and all contributions for any period ending on or before the Effective Time which are not yet due have been made to each such employee pension benefit plan or officeraccrued in accordance with GAAP. With respect to each Benefit Plan that is an employee welfare benefit plan (as such term is defined in Section 3(1) of ERISA), all premiums or other payments for all periods ending on or before the Effective Time have been paid or accrued in accordance with GAAP.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed set forth on Schedule 3.9 [OMITTED], no member of the PHP Group maintains, sponsors or contributes to Parent and the Purchaser, (i) each "any “employee benefit plan" ” (as defined in within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended amended, ("“ERISA")”), and all other employee benefitor any profit sharing plan, bonus, incentivedeferred compensation plan, stock option (or stock bonus plan, savings plan, welfare plan or other equity-based)benefit plan or arrangement, severancepolicy, change in controlpractice, welfare (including post-retirement medical and life insurance) and procedure or contract concerning employee benefits or fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or benefits of any trade or businesskind, whether or not incorporatedgoverned by ERISA, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee relating to or former employee of the Company or covering any of its ERISA Affiliates employees (a “Benefit Plan”). The Company has made available to Buyer true, complete and accurate copies of all summary plan descriptions of the "PHP Group’s current Benefit Plans".
(b) isEach of the Benefit Plans is in compliance in all material respects with all applicable requirements of ERISA, the Code and other applicable law. Each of the Benefit Plans has been operated administered in all material respects in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) legal requirements. With respect to each of the Plans Benefit Plan intended to be "qualified" within the meaning of qualify under Code Section 401(a) of or 403(a), (i) the Code Internal Revenue Service has issued a favorable determination letter, which has not been revoked, that any such plan is tax-qualified and each trust created thereunder has been determined by the Internal Revenue Service (“IRS”) to be so qualified, exempt from federal income tax under Code Section 501(a) and (iiiii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") action or proceeding has not been waived)instituted or, has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened’s Knowledge, claims (other than routine claims for benefits) by, on behalf threatened which would affect the qualification of or against, any pension plan of the Plans or PHP Group. The PHP Group does not sponsor any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" “defined benefit plans” (within the meaning of Section 3(35) of ERISA) nor has ). To the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability knowledge of the Company there has not been any reportable event with respect to any pension plan of the Company. To the knowledge of the Company no member of the PHP Group has engaged in a “prohibited transaction” or an ERISA Affiliate under Title IV breach of ERISA or which could reasonably be anticipated fiduciary responsibility with respect to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse EffectBenefit Plan.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies No member of the most recent actuarial valuation report prepared for such Plan prior PHP Group has ever contributed to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectmulti-employer pension plan.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Each Benefit Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or its ERISA Affiliates that is a “group health plan” (as defined in ERISA Section 607(1) or Code section 5001(b)(1)) has been operated at all times in material compliance with the provisions of COBRA, HIPAA and any ERISA Affiliate to severance payapplicable, unemployment compensation or any other paymentsimilar state law, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officerincluding HIPAA medical privacy rules.
Appears in 1 contract
Samples: Merger Agreement (Amerigroup Corp)
Employee Benefit Plans; ERISA. (a) Except None of the Company or any Company ERISA Affiliate sponsors, maintains, has any obligation to contribute to, has liability under or is otherwise a party to, any Company Employee Benefit Plan.
(b) To the knowledge of the Company, no prohibited transaction within the meaning of Section 406 or 407 of ERISA, or Section 4975 of the Code with respect to any Company Employee Benefit Plan has occurred which, individually or in the aggregate, is having or could be reasonably expected to have a Company Material Adverse Effect;
(c) There is no outstanding liability (except for premiums due) under Title IV of ERISA with respect to any Company Employee Benefit Plan which, individually or in the aggregate, is having or could be reasonably expected to have a Company Material Adverse Effect; and, without limiting the foregoing, full payment has been made of all amounts which the Company was required to have paid as previously disclosed a contribution to Parent each Company Employee Benefit Plan as of the last day of the most recent fiscal year of each of the Company Employee Benefit Plans ended prior to the date of this Agreement, respectively, and no Company Employee Benefit Plan has incurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the PurchaserCode), whether or not waived, as of the last day of the most recent fiscal year of such Company Employee Benefit Plan ended prior to the date of this Agreement which, individually or in the aggregate, is having or could be reasonably expected to have a Company Material Adverse Effect;
(d) None of the Company or any Company ERISA Affiliate has at any time (i) each had any obligation to contribute to any "employee benefit multiemployer plan" (as defined in Section 3(33(37) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option or (ii) withdrawn in any complete or other equity-basedpartial withdrawal from any "multiemployer plan" (as defined in Section 3(37) of ERISA), severance, change in control, welfare with respect to which there exists any unsatisfied obligations;
(including post-retirement medical and life insurancee) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning The value of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee accrued benefits under each of the Company or any Employee Benefit Plans which is subject to Title IV of ERISA, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Company Employee Benefit Plan's actuary with respect to each such Company Employee Benefit Plan, did not, as of its ERISA Affiliates (latest valuation date, exceed the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions then current value of the Code, except for failures that would not, individually or in the aggregate, have a assets of such Company Material Adverse Effect, Employee Benefit Plan;
(iif) each Each of the Company Employee Benefit Plans which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service IRS to be so qualified, (iii) no "reportable event," as qualified and such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") determination has not been waived)modified, revoked or limited;
(g) Each of the Company Employee Benefit Plans is, and its administration is and has occurred been in all material respects in compliance with all applicable laws and orders and prohibited transaction exemptions, including, without limitation, the requirements of ERISA; and
(h) None of the Company or any Company ERISA Affiliate maintains or is obligated to provide benefits under any life, medical or health plan which provides benefits to retirees or other terminated employees other than benefit continuation rights under the Consolidated Omnibus Reconciliation Act of 1985, as amended; and there has been no violation of Section 4980B of the Code or Sections 601 through 608 of ERISA with respect to any Company Employee Benefit Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, is having or could be reasonably expected to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition execution and delivery of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, nor the consummation of the transactions contemplated by this Agreement hereby constitutes or will not (i) entitle any current or former employee or officer constitute an event in respect of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other paymentwhich a change in, or (ii) accelerate the time of payment acceleration of, benefits under any Company Employee Benefit Plan will or vesting or increase the amount of compensation due any such employee or officermay occur.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 3.8 of the PurchaserCompany Disclosure Letter sets forth a list of all material employee benefit plans, (i) each "employee benefit plan" (as defined including but not limited to plans described in Section 3(3section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or by any trade or business, whether or not incorporatedincorporated (an "ERISA Affiliate"), that which together with the Company would be deemed a "single employer" within the meaning of Section 4001 section 4001(b)(15) of ERISA (an "ERISA AffiliateBenefit Plans") and all material employment and severance agreements with employees of the Company ("Employee Agreements"). True and complete copies of all Employee Agreements, including all amendments to date, have been made available to Parent by the Company.
(b) Except as set forth in Section 3.8 of the Company Disclosure Schedule, with respect to each Benefit Plan: (i) if intended to qualify under section 401(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Code"), such plan has received a determination letter from the Internal Revenue Service stating that it so qualifies and that its trust is exempt from taxation under section 501(a) of the Code and nothing has occurred to the best knowledge of the Company since the date of such determination that could materially adversely affect such qualification or exempt status; (ii) such plan has been administered in all material respects in accordance with its terms and applicable law; (iii) no breaches of fiduciary duty have occurred which might reasonably be expected to give rise to material liability on the part of the Company; (iv) no disputes are pending, or, to the knowledge of the Company, threatened that give rise to or might reasonably be expected to give rise to material liability on the part of the Company; (v) no prohibited transaction (within the meaning of Section 406 of ERISA) has occurred that give rise to or might reasonably be expected to give rise to material liability on the part of the Company; and (vi) all contributions required to be made to such plan as of the date hereof (taking into account any extensions for the benefit making of such contributions) have been made in full.
(c) No Benefit Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any employee Benefit Plan a plan described in section 4063(a) of ERISA.
(d) No Benefit Plan has incurred an accumulated funding deficiency, as defined in section 302 of ERISA or section 412 of the Code, whether or not waived.
(e) With respect to each Benefit Plan that is a "welfare plan" (as defined in section 3(1) of ERISA), no such plan provides medical or death benefits with respect to current or former employee employees of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making Subsidiaries beyond their termination of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims employment (other than routine claims for benefitsto the extent required by applicable law).
(f) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or Except as set forth in the aggregateDisclosure Schedule, have a Company Material Adverse Effect. No Plan no material liability has been or is a "multiemployer plan" (within the meaning of ERISA) nor has expected to be incurred by the Company or any ERISA Affiliate ever contributed (either directly or been required indirectly, including as a result of an indemnification obligation or any joint and several liability obligations) under or pursuant to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 Title I or IV of ERISA or Section 412 the penalty or the excise tax or joint and several liability provisions of the Code), whether relating to its or not waived their employee benefit plans, and (ii) neither no event, transaction or condition has occurred or exists that have resulted in or would reasonably be expected to result in any such liability to Parent, the Purchaser, the Company nor or any ERISA Affiliate has incurred or any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability employee benefit plan of the Company or an any ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse EffectAffiliate.
(cg) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies As of the most recent actuarial last valuation report prepared for such Plan date prior to the date hereof, the market value of assets under each Benefit Plan which is an Employee Pension Benefit Plan under Section 3(2) of ERISA (iiother than any multiemployer plan) is less than the assets present value of all vested and nonvested liabilities thereunder determined in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respectsaccordance with PBGC methods, factors, and (iii) since assumptions applicable to an Employee Pension Benefit Plan terminating on the date of such valuation report there has been for determination, by an amount no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectgreater than $100,000.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 1 contract
Samples: Merger Agreement (Healthsource Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed Section 3.10(a) of the Company Disclosure Letter lists all of the material Company Benefit Plans. For each material Company Benefit Plan, prior to the date hereof, the Company has made available to Parent correct and complete copies or forms of the Purchaserfollowing, as applicable: (i) each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare plan document (including post-retirement medical and life insuranceall amendments thereto) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated extent in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, writing; (ii) each written summaries of any such Company Benefit Plan not in writing; (iii) the related trust agreement (including all material amendments thereto), insurance contract or other funding vehicle; (iv) the most recent annual report (Form 5500) filed with the Internal Revenue Service and most recent actuarial report and financial statements; (v) the most recent determination letter or, in the case of a preapproved plan, the most recent advisory or opinion letter with respect to the underlying plan, from the Internal Revenue Service; (vi) to the extent required by applicable Law, the most recent summary plan description and any summaries of material modifications thereto; and (vii) written results of the Plans most recent compliance testing for any Company Benefit Plan intended to meet the tax-qualification requirements of Code Section 401(a).
(b) Each Company Benefit Plan that is intended to be "qualified" within the meaning of qualified under Section 401(a) of the Code Code, and each trust that is related to a Company Benefit Plan and intended to be tax-exempt under Section 501(a) of the Code, has been determined received a favorable determination letter or, in the case of a preapproved plan, the underlying plan has received a favorable opinion or advisory letter, from the Internal Revenue Service, and to the Company’s Knowledge, nothing has occurred that would be reasonably likely to result in the revocation by the Internal Revenue Service of the tax-qualification or tax exemption of any such Company Benefit Plan or related trust. Each Company Benefit Plan and any related trust complies in all material respects, and has been established, funded (to the extent required under applicable law) and administered in compliance in all material respects, with its terms and with ERISA, the Code, and other applicable Laws. All material contributions and payments (including premium and benefit payments with respect to insurance policies) required to be so qualifiedmade have been made with respect to each Company Benefit Plan or, if not yet due, such amounts have been accrued in all material respects in accordance with GAAP.
(c) During the previous six (6) years, none of the Company Entities nor any of their respective ERISA Affiliates has maintained, sponsored, participated in or contributed to (or been obligated to maintain, sponsor, participate in or contribute to) and none of the Company Entities has any Liability (contingent or otherwise with respect to), (i) a plan which is subject to Section 412 of the Code or Section 302 or Title IV of ERISA, (ii) a “multiemployer plan” as defined in Section 3(37) of ERISA, or (iii) no "reportable event," a multiple employer plan as described in Section 413(c) of the Code. No Company Benefit Plan is a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(d) None of the Company Entities nor, to the Company’s Knowledge, any trustee, administrator or other third-party fiduciary and/or party-in-interest with respect to any Company Benefit Plan, has engaged in any breach of fiduciary responsibility or any “prohibited transaction” (as such term is defined in Section 4043(c) 406 of ERISA (for or Section 4975 of the Code) to which Section 406 of ERISA or Section 4975 of the 30-day notice requirement Code applies and which would reasonably be expected to subject the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect Company or any ERISA Affiliate to any material tax or penalty on prohibited transactions imposed by Section 4975 of the Code.
(e) No material Company Benefit Plan that is subject to Title IV maintained outside the jurisdiction of ERISA which presents a risk of liability to the United States or covers any governmental entity employees or other person which, individually service providers of any Company Entity who reside or in work outside of the aggregate, would have a United States on behalf of any Company Material Adverse Effect, and Entity.
(ivf) there There are no pendingpending or, or to the Company's knowledge threatened’s Knowledge, threatened material claims (other than except for routine claims for benefits) by, on behalf of or against, against any of the Plans Company Benefit Plan or any trusts trust related thereto which wouldthereto, individually and no audit or in other proceeding by a Governmental Authority is pending or, to the aggregateCompany’s Knowledge, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute threatened related to any multiemployer planCompany Benefit Plan.
(ig) No Except as required by applicable Law, no Company Benefit Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA provides retiree or Section 412 of the Code)post-employment medical, whether disability, life insurance or not waived and (ii) neither the Company nor other welfare benefits to any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when duePerson, and no events have occurred which are reasonably likely Company Entity has any obligation to give rise to provide such benefits except for any liability payment or reimbursement of the Company COBRA premiums for a period of six (6) months or an ERISA Affiliate under Title IV less immediately following termination as part of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effectseverance benefit.
(ch) With respect to each Plan that is subject to Title IV Except as otherwise provided herein, none of ERISAthe execution and delivery hereof, stockholder or other approval hereof or the consummation of the Merger would reasonably be expected to, either alone or in combination with another event, (i) the result in any payments or benefits becoming due to any Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereofService Provider under a Company Benefit Plan, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company Service Provider to severance pay or any ERISA Affiliate to increase in severance pay, unemployment compensation or any other payment, or (iiiii) accelerate the time of payment or vesting or vesting, increase the amount amount, or result in the forfeiture of compensation due to any such employee Company Service Provider, (iv) directly or officerindirectly require the Company to transfer or set aside any assets to fund any benefits under any Company Benefit Plan, (v) otherwise give rise to any material Liability or loss to the Company Entities under any Company Benefit Plan, (vi) limit or restrict the right of any Company Entity to merge, materially amend, terminate or transfer the assets of any material Company Benefit Plan on or following the Effective Time, or (vii) result in the payment by any Company Entity of any amount that could, individually or in combination with any other such payment, be an “excess parachute payment” as defined in Section 280G(b)(1) of the Code.
(i) No Company Entity has any obligation to gross-up, indemnify or otherwise reimburse any Company Service Provider for any Tax incurred by such individual, including any Tax incurred under Section 409A or 4999 of the Code.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 3.11(a) of the Purchaser, (i) Disclosure Schedule lists each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) bonus and fringe benefit plans (whether plans, programs, arrangements or not subject understandings sponsored or maintained for the benefit of, or contributed to ERISA) maintained or sponsored by the Company or its subsidiaries Seller or any trade or business, whether or not incorporatedincorporated (an "ERISA Affiliate"), that that, together with Seller would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate")ERISA, for the benefit of any employee or former employee of Seller in respect of the Company or any of its ERISA Affiliates Business (the "Plans").
(b) is, and has been operated Each of the Plans is in accordance material compliance with its terms and in compliance (including terms. Each of the making of governmental filings) Plans that is subject to ERISA materially complies with all applicable Laws, including ERISA and the applicable provisions of the Internal Revenue Code of 1986, as amended (the "Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each "). Each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service IRS to be so qualifiedqualified and Seller knows of no fact or set of circumstances that would adversely affect such qualification for events taking place prior to the Closing. Except as set forth in Section 3.11 of the Disclosure Schedule, (iii) no "reportable event," ", as such term is defined in Section 4043(c4043(b) of ERISA (for which the 30-thirty day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred or will occur as a result of the Closing with respect to any Plan that Plan. There is subject to Title IV no "accumulated funding deficiency" as such term is defined in Section 412 of ERISA which presents a risk of liability the Code, whether or not waived with respect to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there Plan. There are no pendingpending or, or to the Company's knowledge threatenedof Seller, threatened material claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.or
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), Except for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would notsuch matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effectmaterial adverse effect on Constellation, (iiA) all Constellation Employee Benefit Plans have been operated, funded and administered in compliance with their terms, the terms of any applicable collective bargaining agreements and with all applicable requirements of Law, including ERISA and the Code, (B) except for regular contribution, funding and vesting requirements of the Constellation Employee Benefit Plans, none of Constellation, any of its subsidiaries or any Constellation ERISA Affiliate has any liabilities or obligations with respect to any Constellation Employee Benefit Plans, whether accrued, contingent or otherwise, nor, to the knowledge of Constellation, are any such liabilities or obligations reasonably expected to be incurred, (C) each of the Plans Constellation Employee Benefit Plan that is intended to be "qualified" qualified within the meaning of Section 401(a) of the Code is so qualified and there are no existing circumstances or events that would reasonably be expected to adversely affect the qualified status of any such Constellation Employee Benefit Plan, (D) there are no audits, proceedings, claims or investigations by any Governmental Authority pending or, to the knowledge of Constellation, threatened in connection with any Constellation Employee Benefit Plan or Constellation Employee Benefit Agreement, (E) no litigation has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred commenced with respect to any Constellation Employee Benefit Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person whichConstellation Employee Benefit Agreement and, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatenedof Constellation, claims no such litigation is threatened (other than routine claims for benefitsbenefits in the normal operation of such Constellation Employee Benefit Plan or Constellation Employee Benefit Agreement), (F) by, on behalf there have been no “prohibited transactions” as defined by Section 406 of ERISA or against, any Section 4975 of the Plans or Code with respect to any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Constellation Employee Benefit Plan is a "multiemployer plan" and (G) no “fiduciary” within the meaning of ERISASection 3(21) nor of ERISA has the Company any liability for breach of fiduciary duty or any ERISA Affiliate ever contributed other act or been required omission with respect to contribute to the investment or administration of the assets of any multiemployer planConstellation Employee Benefit Plan. The only material Constellation Employee Benefit Agreements and material Constellation Employee Benefit Plans that exist on the date of this Agreement are disclosed in Section 3.01(l) of the Constellation Disclosure Letter.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.As used herein:
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed set forth in Schedule 3.15 hereto, the Company does not maintain, administer or otherwise contribute to Parent and the Purchaser, (i) each any "employee benefit plan," (as defined in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporatedsuch plan is subject to any of the provisions of ERISA, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA or any qualified or non-qualified current or deferred compensation (an "ERISA Affiliate"other than base salary and base wages), for the bonus, incentive compensation, stock right, stock option, stock appreciation right, severance pay, retirement, pension, profit- sharing, stock bonus, salary continuation, tuition assistance dependent care assistance, legal assistance, vacation, fringe benefit (cash and non-cash), group or individual health, medical, dental, vision, disability, life insurance or survivor benefit or similar plan, policy or arrangement, which covers any employee, self-employed individual or beneficiary of any employee or former employee self-employed individual, whether active or retired, of the Company (any such plan being herein referred to as an "Employee Plan"). The Company has no commitment to create any additional Employee Plans. Except as set forth in Schedule 3.15, (i) none of such Employee Plans is a money purchase plan or any of its ERISA Affiliates (the "Plans") isa defined benefit plan, and has been operated (ii) none of such Employee Plans is a "multi-employer plan" as defined in accordance with its terms and in compliance (including the making Section 3(37) of governmental filings) with all applicable Laws, including ERISA and the applicable provisions Company has not been obligated to make a contribution to any "multi-employer plan" within the past five years. The Company would have no withdrawal liability if it withdrew from any "multi- employer plan" in which it participates. Each of the Code, except for failures Employee Plans that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans is intended to be "qualified" within the meaning of qualified under Section 401(a) of the Internal Revenue Code (the "Code") has been determined by the Internal Revenue Service ("IRS") to be so qualified, (iii) no "reportable event," such determination by the IRS covers the most recent restatement of each such Employee Plan, such determination may be relied upon by the Company as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or againstClosing Date, any of the Plans or amendment upon which any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan such determination is a "multiemployer plan" (within the meaning of ERISA) nor conditioned has been duly adopted by the Company or and the Company is not aware of any ERISA Affiliate ever contributed or been required to contribute to fact which would adversely affect the qualified status of any multiemployer plansuch Employee Plan.
(b) True and complete copies of each Employee Plan, including all amendments thereto and related trust or other funding agreements and the latest financial statements thereof, have been heretofore delivered to Buyer, together with (i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 a true and complete copy of the Code)three most recent annual reports (if required by law) for each such plan including any and all schedules, whether or not waived opinions and attachments thereto prepared in connection with any such reports, (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies copy of the most recent actuarial valuation report prepared for summary plan description and summary of material modifications of each such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respectsplan, and (iii) since for each Employee Plan intended to be covered under Section 401(a) of the date Code, a copy of such valuation report there the most recent IRS determination letter and the application therefore. None of the Company, Sellers, any Employee Plan, any "party in interest" as defined in section 3(14) of ERISA or any "disqualified person" as defined under Section 4975 of the Code has been no adverse change engaged in a "prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of the funded status of Code, with respect to any such Employee Plan which would, individually could subject any of them or in the aggregate, have a Company Material Adverse Effect.
(dBuyer to liability or penalty under Section 409 or 502(i) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation Section 4975 of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officerCode.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each "employee benefit plan" (as defined in Section 3(37.4(a) of the Employee Retirement Income Security Act of 1974Seller’s Disclosure Letter lists all material benefit and compensation plans and contracts, as amended ("ERISA")), and all other including “employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" plans” within the meaning of Section 4001 3(3) of ERISA (an "ERISA Affiliate")ERISA, and all deferred compensation, stock option, stock purchase, stock appreciation rights, stock-based incentive and bonus plans maintained or contributed to by any Selling Party for the benefit of any employee Eligible Employee (collectively, the “Plans”). True and complete copies of all material Plans, including any trust instruments and insurance contracts forming a part of any Plans, and all amendments thereto have been provided or former employee made available to each Buyer Parent.
(b) Each of the Company or any of its ERISA Affiliates (the "Plans") is, and Plans has been operated administered in accordance with its terms and in substantial compliance with applicable Law (including the making of governmental filings) with all applicable Lawsincluding, including where applicable, ERISA and the applicable provisions of the Code), except for failures that would where the failure to so administer such Plan is not, individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect, .
(iic) each Each of the Plans intended to be "“qualified" ” within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and Seller knows of no fact or set of circumstances that has adversely affected, or is reasonably likely to affect adversely, the qualification of such Plan prior to the Closing.
(iiid) Except as set forth in Section 7.4(d) of the Seller’s Disclosure Letter, no "reportable eventPlan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for any Eligible Employee for periods extending beyond their termination of service (by retirement or otherwise), other than (i) coverage mandated by applicable Law, (ii) death benefits under any “pension plan," ” as such that term is defined in Section 4043(c3(2) of ERISA ERISA, or (for iii) benefits the full cost of which is borne by the 30-day notice requirement Eligible Employee (or his beneficiary).
(e) There are no pending or, to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)Selling Parties’ Knowledge, has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, threatened claims (other than routine claims for benefits) by, on behalf of or against, against any of the Plans or any trusts related thereto which wouldthereto, except for those claims that are not, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously set forth in Company SEC Reports filed prior to the date of this Agreement or as disclosed to Parent and in SECTION 3.13 of the PurchaserDisclosure Letter, (i) each the Company has no material "employee benefit plan" (as defined in Section within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefitseverance, bonuschange-in-control or employment plan, incentiveprogram or agreement, stock option option, bonus plan, or incentive plan or program (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA AffiliateCOMPANY PLANS"), for the benefit of any employee . Copies or former employee descriptions of the Company Plans have been or any of will be made available to Buyer.
(b) Except as would not have a material adverse effect on the Company and its ERISA Affiliates (the "Plans") isSubsidiaries taken as a whole, and each Company Plan has been operated in accordance with its terms administered and is in compliance (including with the making terms of governmental filings) with such Plan and all applicable Lawslaws, including ERISA rules and the applicable provisions regulations.
(c) Except as disclosed on SECTION 3.13(c) of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, Disclosure Letter: (iii) each of the Plans Company Plan intended to be "qualified" within the meaning of Section 401(a) of the Code qualified has been determined by received a favorable determination from the Internal Revenue Service and (ii) except as would not have a material adverse effect on the Company and its Subsidiaries taken as a whole, to be so qualifiedthe Company's knowledge, nothing has occurred since that would adversely affect such qualification.
(iiid) Except as would not have a material adverse effect on the Company and its Subsidiaries taken as a whole: (i) no "reportable event," (as such term is defined used in Section 4043(csection 4043 of ERISA) of ERISA (other than those events for which the 30-30 day notice requirement has been waived pursuant to the Pension Benefit Guaranty Corporation ("PBGC"regulations) has not been waived), has occurred is pending with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse EffectPlan, and (ivii) there are no pending"accumulated funding deficiency" (as such term is used in section 412 or 4971 of the Code) has occurred during the last 5 years with respect to any Company Plan.
(e) No litigation or administrative or other proceeding involving any Company Plans has occurred or, or to the Company's knowledge knowledge, are threatened, claims where, in either case, an adverse determination would result in liability that would have a material adverse effect on the Company and its Subsidiaries taken as a whole.
(other than routine claims for benefitsf) by, Except as disclosed on behalf of or against, any SECTION 3.13(f) of the Plans or Disclosure Letter, the Company has not contributed to any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of section 3(37) of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code sections 414(b), (c), (m) or (o)) has incurred any withdrawal liability which remains unsatisfied in an amount which would result in liability that would have a material adverse effect on the Company and its Subsidiaries taken as a whole.
(g) No Company Plan or plan sponsored by any member of the Company's Controlled Group has been terminated, where such termination has resulted in liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of material adverse effect on the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officerand its Subsidiaries taken as a whole.
Appears in 1 contract
Samples: Merger Agreement (Dairy Mart Convenience Stores Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and The Company SEC Reports or the Purchaser, (i) Company Disclosure Letter set forth each "employee or director benefit plan" (as defined in , arrangement or agreement, including without limitation any employee welfare benefit plan within the meaning of Section 3(33(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and all other employee benefit, any bonus, incentive, deferred compensation, vacation, stock option (or other equity-based)purchase, stock option, severance, employment, change of control or fringe benefit plan, program or agreement (excluding any multi-employer plan as defined in control, welfare Section 3(37) of ERISA (including posta "Multi-retirement medical and life insuranceemployer Plan") and fringe benefit plans (whether or not subject to ERISAany multiple employer plan within the meaning of Section 413(c) of the Code) that is sponsored, maintained or sponsored contributed to by the Company or any of its subsidiaries or by any trade or business, whether or not incorporated, that all of which together with the Company would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an the "ERISA AffiliateCompany Plans"). Except as disclosed in the Company SEC Reports or in the Company Disclosure Schedule, for (i) there have been no prohibited transactions within the benefit meaning of Section 406 or 407 of ERISA or Section 4975 of the Code with respect to any employee or former employee of the Company Plans that could result in penalties, taxes or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would notliabilities which would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) no Company Plan is subject to Title IV of ERISA, (iii) each of the Company Plans has been operated and administered in accordance with all applicable laws during the period of time covered by the applicable statute of limitations, except for failures to comply which would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (iv) each of the Company Plans which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service IRS to be so qualified, (iii) no "reportable event," as qualified and such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") determination has not been waived)revoked by failure to satisfy any condition thereof or by a subsequent amendment thereto or a failure to amend, except that it may be necessary to make additional amendments retroactively to maintain the "qualified" status of such Company Plans, and the period for making any such necessary retroactive amendments has occurred with respect not expired, (v) to the knowledge of the Company and its subsidiaries, there are no pending, threatened or anticipated claims involving any Plan that is subject to Title IV of ERISA the Company Plans other than claims for benefits in the ordinary course or claims which presents a risk of liability to any governmental entity or other person whichwould not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (vi) no Company Plan provides post-retirement medical benefits to employees or directors of the Company or any of its subsidiaries beyond their retirement or other termination of service, other than coverage mandated by applicable law, (vii) all material contributions or other amounts payable by the Company or its subsidiaries as of the date hereof with respect to each Company Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles, (viii) with respect to each Multi-employer Plan contributed to by the Company, to the knowledge of the Company and its subsidiaries, as of the date hereof, none of the Company or any of its subsidiaries has received any notification that any such Multi-employer Plan is in reorganization, has been terminated or is insolvent, (ix) the Company and each of its subsidiaries has complied in all respects with the Worker Adjustment and Retraining Notification Act, except for failures which would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, and (ivx) there are no pendingact, omission or transaction has occurred with respect to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of any Company Plan that has resulted or against, could result in any liability of the Plans Company or any trusts related thereto subsidiary under Section 409 or 502(c)(1) or (l) of ERISA or Chapter 43 of Subtitle (A) of the Code, except for liabilities which wouldwould not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect. No Plan is a Except as set forth in the Company Disclosure Schedule, and excluding payments in respect of outstanding Options, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment (including, without limitation, any severance or "multiemployer planexcess parachute payment" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 280G of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise becoming due to any liability of the Company director or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance payof its subsidiaries under any Company Plan, unemployment compensation or (ii) increase any other paymentbenefits otherwise payable under any Company Plan, or (iiiii) accelerate result in any acceleration of the time of payment or vesting or increase the amount of compensation due any such employee or officerbenefits.
Appears in 1 contract
Samples: Merger Agreement (Black Hawk Gaming & Development Co Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each "All employee benefit plan" programs, plans, or arrangements (as defined in including but not limited to employee benefit plans within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) ----- maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (collectively, the "Plans") isare in compliance with, and has at all times have been administered and ----- operated in accordance with its with, the terms of such Plans and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Codelaw, except for failures any failure to so comply, operate or administer the Plans that would not, individually or in the aggregate, have be reasonably likely to result in a Company Material Adverse Effect, (ii) . The Internal Revenue Service has issued a determination letter to the effect that each of the Plans such Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service Code of 1986, as amended (the "Code") is so qualified (and no circumstances exist that ---- are reasonably expected to be so qualifiedresult in the revocation of any such determination). Except as set forth in Schedule 3.10 or in written documents made available to Parent or the Purchaser prior to the date hereof, neither the Company, its Subsidiaries nor the ERISA Affiliates maintains or within the last six (iii6) no years has maintained any plan, program or arrangement subject to Title IV of ERISA (a "Title IV Plan"). No event which constitutes a "reportable event," as such term is defined in ------------- Section 4043(c) 4043 of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Title IV Plan that which presents a material risk of the termination or partial termination of any such Plan or would reasonably be expected to result in a material liability of the Company or any of its Subsidiaries. No Title IV Plan has been terminated in connection with which any liability has been incurred which has not been satisfied in full. Full payment has been made, or provision has been made therefor, of all amounts which the Company or any of its Subsidiaries or ERISA Affiliates were required under the terms of the Plans and applicable law to have paid as contributions to such Plans and no Plan which is subject to Part 3 of Subtitle B of the Title IV I of ERISA which presents a risk of liability to has incurred any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer planaccumulated funding deficiency" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) waived. Neither the Company nor any ERISA Affiliate of its Subsidiaries has failed to make at any contribution or payment to time during the prior six (6) years engaged in any nonexempt prohibited transactions in connection with any Plan (or its related trust) with respect to which has resulted the Company, any of its Subsidiaries, or could result in any officer, director or employee of the imposition Company or any of its Subsidiaries, would be subject to either a lien or the posting penalty pursuant to Section 502(i) of a bond or other security under ERISA or a tax imposed by Section 4975 of the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in nor, to the Disclosure Letterknowledge of the Company, will the consummation of the transactions contemplated by this Agreement will constitute such a transaction which penalty or tax would, individually or in the aggregate, result in a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has, at any time during the prior six (6) years, incurred any liability under the fiduciary provisions of ERISA, other than any liability that would not individually, or in the aggregate, result in a Company Material Adverse Effect. Except for claims for benefits in the ordinary course of business, no claim, action or litigation has been made, commenced or, to the knowledge of the Company, expressly threatened with respect to any Plan that would, if adversely determined, result in a Company Material Adverse Effect. Except as set forth in Schedule 3.10, neither the Company nor any of its Subsidiaries or ERISA Affiliates has participated in or contributed to or been required to contribute to any multiemployer plan as defined in Section 3(37) of ERISA at any time during the prior six (i6) entitle any current years. With respect to each employee pension benefit plan (as defined in Section 3(2) of ERISA) which is a defined benefit plan and is not a multiemployer plan, on the date of the most recent actuarial valuation, the assets of such Plan available to meet the accrued liabilities of such Plan exceeded the projected benefit obligation with respect to the Plan based on the actuarial assumptions most recently used by the Company with respect to the Plan for financial accounting purposes. Except as set forth on Schedule 3.10, no Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employee or officer employees of the Company or any ERISA Affiliate to severance payof its Subsidiaries for periods extending beyond their retirement or other termination of service, unemployment compensation or other than (i) coverage mandated by applicable law, (ii) death benefits under any other paymentemployee pension benefit plan, or (iiiii) accelerate benefits the time full cost of payment which is borne by the current or vesting former employee (or increase the amount of compensation due his or her beneficiary). The Company is not a party to any such employee agreement, contract or officer.arrangement, or any amendments thereto, that
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Schedule 3.13 lists each Company Employee Benefit Plan. Except as previously disclosed to Parent and the Purchaser, in Schedule 3.13 hereto:
(i) each "employee benefit plan" (as defined in with respect to any Company Employee Benefit Plan subject to Section 3(3) 406 or 407 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) or Sections 4975 of the Code, no non-exempt prohibited transaction within the meaning of Section 406 or 407 of ERISA, or Section 4975 of the Code with respect to any Company Employee Benefit Plan (as defined below) has occurred during the five-year period preceding the date of this Agreement;
(ii) neither the Pension Benefit Guaranty Corporation (the "PBGC"), the Company nor any of its Subsidiaries has instituted proceedings to terminate any Company Employee Benefit Plan;
(iii) all contributions, premiums and other payments required by law or any Plan or applicable collective bargaining agreement to have been made under any such Plan (without regard to any waivers granted under Section 412 of the Code) to any fund, trust or account established thereunder or in connection therewith have been made by the due date thereof, and no amounts are or will be due to the Pension Benefit Guaranty Corporation (except for premiums in the ordinary course of business); and any and all contributions, premiums and other employee benefitpayments with respect to compensation or service before and through the Closing, bonusor otherwise with respect to periods before and through the Closing, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by due from any of the Company or its subsidiaries affiliates to, under or on account of each Company Employee Benefit Plan shall have been paid prior to Closing or shall have been fully reserved and provided for on the Company Financial Statements;
(iv) no such Company Employee Plan that is or has been subject to Part III of Subtitle B of Title I of ERISA or Section 412 of the Code has incurred any trade or business"accumulated funding deficiency" (as defined therein), whether or not incorporatedwaived, that would no liability under Title IV of ERISA has been incurred or is expected to be deemed a incurred with respect to any such Plan subject thereto (other than premiums incurred and paid when due), nor has there been any "single employerreportable event" within the meaning of Section 4001 4043(c) of ERISA with respect to any such Plan;
(an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (iiv) each of the Company Employee Benefit Plans which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service IRS to be so qualifiedqualified and such determination has not been modified, revoked or limited, and no circumstances have occurred that would adversely affect the tax-qualified status of any such Plan;
(vi) each of the Company Employee Benefit Plans is, and its administration is and has been in compliance with, and none of the Company nor any of its Subsidiaries has received any claim or notice that any such Company Employee Benefit Plan is not in compliance with, its terms and all applicable laws and orders and prohibited transaction exemptions, including, without limitation, the requirements of ERISA and all tax rules for which favorable tax treatment is intended, bonding requirements and requirements for the filing of applicable reports, documents, and notices with the Secretary of Labor or the Secretary of the Treasury and the furnishing of documents to the participants or beneficiaries of each such Plan;
(vii) there is no suit, action, dispute, claim, arbitration or legal, administrative or other proceeding or governmental investigation pending, or threatened, alleging any breach of the terms of any such Plan or of any fiduciary duties thereunder or violation of any applicable law with respect to any such Plan;
(viii) none of the Company or any of its Subsidiaries is in default in performing any of its contractual obligations under any of the Company Employee Benefit Plans or any related trust agreement or insurance contract;
(ix) none of the Company or any Subsidiary, or any "party in interest" (as defined in Section 3(14) of ERISA) or any "disqualified person" (as defined in Section 4975 of the Code) with respect to any such Plan, has engaged in a non-exempt "prohibited transaction" within the meaning of Section 4975 of the Code or Section 406 of ERISA;
(i) no Company Employee Benefit Plan that is a "welfare benefit plan" as defined in Section 3(1) of ERISA provides for continuing benefits or coverage for any participant or beneficiary of a participant after such participant's termination of employment, except to the extent required by law; (ii) there has been no violation of Section 4980B of the Code or Sections 601 through 608 of ERISA with respect to any such Plan that could result in any liability; (iii) no such Plans are "reportable event,multiple employer welfare arrangements" within the meaning of Section 3(40) of ERISA; (iv) none of the Company or any Subsidiary maintains or has any obligation to contribute to any "voluntary employees' beneficiary association" within the meaning of Section 501(c)(9) of the Code or other funding arrangement for the provision of welfare benefits (such disclosure to include the amount of any such funding); and (v) all Company Employee Benefit Plans which provide medical, dental health or long-term disability benefits are fully insured and claims with respect to any participant or covered dependent under such Company Employee Benefit Plan could not result in any uninsured liability to Parent or the Surviving Corporation;
(xi) none of the Company, any Subsidiary or any ERISA Affiliate has at any time: (a) had any obligation to contribute to any "multiemployer plan" as such term is defined in Section 4043(c3(37) of ERISA and (b) withdrawn in any complete or partial withdrawal from any "multiemployer plan" as defined in Section 3(37) of ERISA;
(xii) none of the Company Employee Benefit Plans, or other Plan maintained, sponsored or contributed to by the Company or any affiliate thereof, is or has ever been subject to Part III of Subtitle B of Title I or ERISA, Section 412 of the Code or Title IV of ERISA;
(xiii) with respect to each such Plan, true, correct, and complete copies of the applicable following documents have been delivered to Parent:
(a) all current Plan documents and related trust documents, and any amendment thereto; (b) Forms 5500, financial statements, and actuarial reports for the last three Plan years for any Plan for which the 30-day notice requirement filing of such forms or reports is required by the Code or ERISA; (c) for any Plan intended to be "qualified" within the Pension Benefit Guaranty Corporation meaning of Section 401(a) of the Code, the most recently issued IRS determination letter; ("PBGC"d) has summary plan descriptions; and (e) the Company's employee manual and all other written communications that establish benefit obligations not been waived)reflected in employee plan documents; and
(xiv) without limiting any other provision of this Section 3.13, no event has occurred and no condition exists, with respect to any Plan, that has subjected or could subject the Surviving Corporation, the Company or any Subsidiary, or any Company Employee Benefit Plan or any successor thereto, to any tax, fine, penalty or other liability (other than, in the case of the Company, the Surviving Corporation and the Company Employee Benefit Plans, a liability arising in the normal course to make contributions or payments, as applicable, when ordinarily due under a Company Employee Benefit Plan with respect to employees of the Company and the Subsidiaries). No event has occurred and no condition exists, with respect to any Plan that could subject Parent or any of its affiliates, or the Surviving Corporation, or any Plan maintained by Parent or any affiliate thereof, to any tax, fine, penalty or other liability, that would not have been incurred by Parent or any of its affiliates, or any such Plan, but for the transactions contemplated hereby. No Plan other than a Company Employee Benefit Plan is subject or will be directly or indirectly binding on Parent or the Surviving Corporation by virtue of the transactions contemplated hereby. Parent, and its affiliates, including on and after the Closing, the Surviving Corporation and any Subsidiary, shall have no liability for, under, with respect to Title IV or otherwise in connection with any Plan, which liability arises under ERISA or the Code, by virtue of the Company or any Subsidiary being aggregated in a controlled group or affiliated service group with any ERISA Affiliate purposes of ERISA or the Code at any relevant time prior to the Closing. Except as set forth in Schedule 3.13 hereto, no Plan exists which presents a risk could result in the payment of liability money or any other property or rights, or accelerate or provide any other rights or benefits, to any governmental entity current or former employee of the Company or any Subsidiary (or other person whichcurrent or former service provider thereto) that would not have been required but for the transactions provided for herein, individually and none of the Company or any Subsidiary, nor any of their respective affiliates, is a party to any Plan, program, arrangement or understanding that would result, separately or in the aggregate, would have in the payment (whether in connection with any termination of employment or otherwise) of any "excess parachute payment" within the meaning of Section 280G of the Code with respect to a Company Material Adverse Effect, and (iv) there are no pendingcurrent or former employee of, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of current or againstformer independent contractor to, any of the Plans Company or any trusts related thereto which wouldSubsidiary. Except as set forth in Schedule 3.13 hereto, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning none of ERISA) nor has the Company or any ERISA Affiliate ever contributed Subsidiary maintains any Plan which provides severance benefits to current or been required to contribute to any multiemployer plan.
(i) No former employees or other service providers. Each Company Employee Benefit Plan has incurred an "accumulated fund deficiency" (as defined may be amended and terminated in Section 302 of ERISA or Section 412 of accordance with its terms, and, each such Plan provides for the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability unrestricted right of the Company or an ERISA Affiliate any Subsidiary (as applicable) to amend or terminate such Plan. Neither the Surviving Corporation nor Parent will have any liability under Title IV of ERISA the Workers Adjustment and Retraining Notification Act, as amended, with respect to any events occurring or which could reasonably be anticipated conditions existing on or prior to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse EffectClosing.
(cb) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits Except as set forth in Schedule 3.13 hereto, neither the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status execution and delivery of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, nor the consummation of the transactions contemplated by this Agreement hereby constitutes a change in control or has or will not accelerate benefits under any Company Employee Benefit Plan.
(ic) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.As used herein:
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Progressive has Previously Disclosed each material Progressive Plan.
(b) With respect to each material Progressive Plan, Progressive has made available to Xxxxxx Chartered true and complete copies of each of the following documents: (1) the Progressive Plan and related documents (including all amendments thereto); (2) the most recent annual reports, financial statements, and actuarial reports, if any; (3) the most recent summary plan description, together with each summary of material modifications, required under ERISA with respect to such Progressive Plan; and (4) the most recent determination letter received from the Internal Revenue Service with respect to each Progressive Plan that is intended to be qualified under the Code.
(c) Except as previously disclosed Previously Disclosed, no liability under Title IV of ERISA has been incurred by Progressive or any ERISA Affiliate of Progressive since the effective date of ERISA that has not been satisfied in full, and no condition exists that presents a material risk to Parent and Progressive or any ERISA Affiliate of Progressive of incurring a liability under such Title, other than liability for premium payments to the PurchaserPension Benefit Guaranty Corporation, which premiums have been or will be paid when due.
(id) each "employee benefit plan" (as defined in Section 3(3) Neither Progressive nor any ERISA Affiliate of Progressive, nor any of the Employee Retirement Income Security Act Progressive Plans, nor any trust created thereunder, nor, to the best knowledge of 1974Progressive, as amended any trustee or administrator thereof has engaged in a prohibited transaction ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 406 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee and Section 4975 of the Company Code) in connection with which Progressive or any ERISA Affiliate of its ERISA Affiliates Progressive could, either directly or indirectly, incur a material liability or cost.
(the "Plans"e) isExcept as Previously Disclosed, and full payment has been operated made, or will be made in accordance with its terms and in compliance (including the making of governmental filingsSection 404(a)(6) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures of all amounts that would not, individually Progressive or in the aggregate, have a Company Material Adverse Effect, (ii) each any ERISA Affiliate of Progressive is required to pay under Section 412 of the Code or under the terms of the Progressive Plans.
(f) Except as Previously Disclosed, as of the Closing Date, the then fair market value of the assets held under each Progressive Plan that is subject to Title IV of ERISA will be sufficient so as to permit a "standard termination" of each such Progressive Plan under Section 4042(b) of ERISA without the need to make any additional contributions to such Progressive Plans. No reportable event under Section 4043 of ERISA has occurred with respect to any Progressive Plan on or before the Closing Date other than any reportable event occurring by reason of the transactions contemplated by this Agreement or a reportable event for which the requirement of notice to the Pension Benefit Guaranty Corporation has been waived.
(g) Except as Previously Disclosed, none of the Progressive Plans is a "multiemployer pension plan," as such term is defined in Section 3(37) of ERISA, a "multiple employer welfare arrangement," as such term is defined in Section 3(40) of ERISA, or a single employer plan that has two or more contributing sponsors, at least two of whom are not under common control, within the meaning of Section 4063(a) of ERISA.
(h) Except as Previously Disclosed, a favorable determination letter has been issued by the Internal Revenue Service with respect to each Progressive Plan that is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by to the Internal Revenue Service to be effect that such plan is so qualified, (iii) no "reportable event," as qualified and each such term is defined in Progressive Plan satisfies the requirements of Section 4043(c401(a) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Code in all material respects. Each Progressive Plan that is subject intended to Title IV satisfy the requirements of Section 125 or 501(c)(9) of the Code satisfies such requirements in all material respects. Each Progressive Plan has been operated and administered in all material respects in accordance with its terms and applicable laws, including but not limited to ERISA which presents a risk of liability to any governmental entity or other person whichand the Code.
(i) Except as Previously Disclosed, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no actions, suits or claims pending, or or, to the Company's knowledge threatenedof Progressive, claims threatened or anticipated (other than routine claims for benefits) byagainst any Progressive Plan, on behalf the assets of any Progressive Plan or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company against Progressive or any ERISA Affiliate ever contributed or been required to contribute of Progressive with respect to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.Progressive
Appears in 1 contract
Samples: Reorganization Agreement (Hudson Chartered Bancorp Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each Each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentivedeferred compensation, stock option (or other equity-based)written Contract relating to employment or fringe benefits for employees, severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored contributed to by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Transferred Company or any Subsidiary of its ERISA Affiliates any Transferred Company (collectively, the "Plans") isis listed on the Disclosure Schedule, is in substantial compliance with any and all Applicable Laws and has been administered and operated in all material respects in accordance with its terms and in compliance terms.
(including the making of governmental filingsb) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans Each Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code Code, has been determined by received a favorable determination letter from the Internal Revenue Service to be so qualified, (iii) and no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), event has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or condition exists which could reasonably be anticipated expected to result in any claims being made against Purchaser by the PBGC, in revocation of any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each determination. No Plan that is subject to Title IV of ERISA, (i) Part 3 of Subtitle B of Title I of ERISA or the Company has provided to Parent and the Purchaser copies minimum funding requirements of Section 412 of the most recent actuarial valuation report prepared for such Plan prior Code. Other than with respect to the date hereofPlans, (ii) the assets and liabilities in respect neither Seller nor any of the accrued its Affiliates has any Liability under any employee benefit plan, bonus, deferred compensation, stock option or other written Contract relating to employment or fringe benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectfor employees.
(dc) Neither Seller, any Affiliate of the Company Seller nor any ERISA Affiliate other "disqualified person" or "party in interest" (as defined in Section 4975(e)(2) of the Code and Section 3(14) of ERISA, respectively) has failed to make engaged in any contribution or payment to transaction in connection with any Plan which has resulted or that could reasonably be expected to result in the imposition of a lien or the posting material penalty pursuant to Section 502(i) of a bond or other security under ERISA, damages pursuant to Section 409 of ERISA or a tax pursuant to Section 4975(a) of the Code Code. None of Seller or any of its Affiliates has maintained any Plan (other than a Plan which would have a is intended to be "qualified" within the meaning of Section 401(a) of the Code) which provides benefits with respect to employees or former employees of any Transferred Company Material Adverse Effector any Subsidiary of any Transferred Company following their termination of service with such Transferred Company or such Subsidiary (other than as required pursuant to Section 601 of ERISA).
(ed) Except No individual shall accrue or receive additional benefits, service or accelerated rights to payment of benefits as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation a direct result of the transactions contemplated by this Agreement will not (i) entitle any current Agreement. No material Liability, audit or former employee Action has been incurred, made, commenced or, to the Knowledge of Seller, threatened, by or officer of the Company against Seller or any ERISA Affiliate of its Affiliates with respect to severance pay, unemployment compensation or any Plan (other payment, or (ii) accelerate than for benefits payable in the time of payment or vesting or increase the amount of compensation due any such employee or officerordinary course).
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent Section 4.11(a) of the Bargx Xxxclosure Schedule contains a true and the Purchaser, (i) each "complete list of all employee benefit plan" plans or arrangements (as defined written or oral) of any type (including plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefitsponsored, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored contributed to by the Company or its subsidiaries or Bargx xx any trade or business, whether or not incorporated, that would which together with Bargx xxxld be deemed a "single employer" within the meaning of Section 4001 414(b), (c) or (m) of the Code or section 4001(b)
(1) of ERISA (an a "ERISA AffiliateBARGX XXXSA AFFILIATE") within six years prior to the Effective Time ("BARGX XXXEFIT Plans"), for the benefit of any employee .
(b) With respect to each Bargx Xxxefit Plan: (i) if intended to qualify under Section 401(a) or former employee 401(k) of the Company or any Code, such plan satisfies the requirements of such sections, has received a favorable determination letter from the Internal Revenue Service with respect to its ERISA Affiliates (the "Plans") isqualification, and its related trust has been operated determined to be exempt from tax under Section 501(a) of the Code and, to the knowledge of Bargx, xxthing has occurred since the date of such letter to adversely affect such qualification or exemption; (ii) each such plan has been administered in accordance substantial compliance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Codelaw, except for failures any noncompliance with respect to any such plan that could not reasonably be expected to result in a Bargx Xxxerial Adverse Effect; (iii) neither Bargx xxx any Bargx XXXSA Affiliate has engaged in, and Bargx xxx each Bargx XXXSA Affiliate do not have any knowledge of any Person that has engaged in, any transaction or acted or failed to act in any manner that would not, individually or subject Bargx xx any Bargx XXXSA Affiliate to any liability for a breach of fiduciary duty under ERISA that could reasonably be expected to result in the aggregate, have a Company Material Bargx Xxxerial Adverse Effect; (iv) no disputes are pending or, to the knowledge of Bargx xx any Bargx XXXSA Affiliate, threatened; (iiv) neither Bargx xxx any Bargx XXXSA Affiliate has engaged in, and Bargx xxx each Bargx XXXSA Affiliate do not have any knowledge of any Person that has engaged in, any transaction in violation of Section 406(a) or (b) of ERISA or Section 4975 of the Plans intended Code for which no exemption exists under Section 408 of ERISA or Section 4975(c) of the Code or Section 4975(d) of the Code or that would result in a civil penalty being imposed under subsections (i) or (l) of Section 502 of ERISA, in either case that could reasonably be expected to be result in a Bargx Xxxerial Adverse Effect; (vi) there have been no "qualifiedreportable events" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) 4043 of ERISA (for which the 30-30 day notice requirement to of ERISA has not been waived by the Pension Benefit Guaranty Corporation (the "PBGC"); (vii) has not all contributions due have been waived)made on a timely basis (within, has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person whichwhere applicable, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in time limit established under Section 302 of ERISA or Code Section 412 412); (viii) no notice of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate intent to terminate such plan has incurred any liability been given under Title IV Section 4041 of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely proceeding has been instituted under Section 4042 of ERISA to give rise to any liability of the Company or an ERISA Affiliate under terminate such plan; (ix) no Bargx Xxxefit Plan is a plan covered by Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV the funding requirements of ERISA, Code Section 412; (ix) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior except to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security extent required under ERISA Section 601 et seq. and Code Section 4980B, neither Bargx xxx any Bargx XXXSA Affiliate provides health or the Code which would have a Company Material Adverse Effect.
(e) Except as provided welfare benefits for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current retired or former employee or officer of the Company is obligated to provide health or any ERISA Affiliate welfare benefits to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.any
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the PurchaserSchedule 3.8 hereto sets forth a list of all material employee benefit plans, (i) each "employee benefit plan" (as defined including but not limited to plans described in Section 3(3section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or Company, any of its subsidiaries Subsidiaries or any trade or business, whether or not incorporatedincorporated (an "ERISA Affiliate"), that which together with the Company would be deemed a "single employer" within the meaning of Section 4001 section 4001(b)(15) of ERISA (an "ERISA AffiliateBenefit Plans") and all material employment and severance agreements with employees of the Company ("Employee Agreements"). True and complete copies of all Employee Agreements have been made available to Parent by the Company.
(b) With respect to each Benefit Plan, except as otherwise disclosed on Schedule 3.8: (i) if intended to qualify under section 401(a) or 401(k) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Code"), such plan has received a determination letter from the Internal Revenue Service stating that it so qualifies and that its trust is exempt from taxation under section 501(a) of the Code; (ii) such plan has been administered in all material respects in accordance with its terms and applicable law; (iii) no breaches of fiduciary duty have occurred which might reasonably be expected to give rise to material liability on the part of the Company; (iv) no disputes are pending, or, to the knowledge of the Company, threatened that might reasonably be expected to give rise to material liability on the part of the Company; (v) no prohibited transaction (within the meaning of Section 406 of ERISA) has occurred that might reasonably be expected to give rise to material liability on the part of the Company; and (vi) all contributions required to be made to such plan as of the date hereof (taking into account any extensions for the benefit making of such contributions) have been made in full.
(c) No Benefit Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any employee Benefit Plan a plan described in section 4063(a) of ERISA.
(d) No liability under Title IV of ERISA has been incurred by the Company or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to the Company or any ERISA Affiliate of incurring a material liability under such Title. No Benefit Plan has incurred an accumulated funding deficiency, as defined in section 302 of ERISA or section 312 of the Code, whether or not waived.
(e) With respect to each Benefit Plan that is a "welfare plan" (as defined in section 3(1) of ERISA), no such plan provides medical or death benefits with respect to current or former employee employees of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making Subsidiaries beyond their termination of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims employment (other than routine claims for benefits) by, on behalf of or against, any of to the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been extent required to contribute to any multiemployer planby applicable law).
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(df) Neither the Company nor any ERISA Affiliate of its Subsidiaries has failed to make been reimbursed by the federal government or any contribution or payment other Governmental Entity relating to any pension or welfare benefits, or any other employee benefits or fringe benefits maintained or contributed to by the Company.
(g) To the knowledge of the Company, there has been no violation (or tax incurred under) Section 4980B of the Code or Sections 601-609 of ERISA with respect to any Benefit Plan which has resulted or that could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effectmaterial liability.
(eh) Except as provided for in this Agreement or as disclosed in the Disclosure LetterSubject to applicable requirements of ERISA, the consummation Code and collective bargaining agreements, neither any provision of the transactions contemplated any Benefit Plan nor any agreement with any employee nor any representation or course of conduct by this Agreement will not (i) entitle any current or former employee or officer on behalf of the Company or its ERISA Affiliates would prevent the amendment or termination after the Effective Time of any Benefit Plan without liability to Parent, the Purchaser, the Company or their ERISA Affiliate to severance payAffiliates. (i) Based on the valuation as of January 1, unemployment compensation or any other payment1997, or as appropriately adjusted through December 31, 1997, for purposes of financial disclosure in the Company's financial statements, the assets of the Handy & Xxxxxx Pension Plan, the Handy & Xxxxxx Hourly Pension Plan and the Handy & Xxxxxx Bargain Unit Pension Plan exceed the FAS 87 liabilities (iii.e., the projected benefit obligations) accelerate the time by an amount in excess of payment or vesting or increase the amount of compensation due any such employee or officer$120 million.
Appears in 1 contract
Samples: Merger Agreement (Handy & Harman)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent Schedule 3.18(a) contains a true and the Purchaser, (i) each "complete list of all employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 3(3) of ERISA ERISA) and any deferred compensation arrangements, supplemental retirement, bonus compensation plans or policies, severance pay, disability, vacation and sick leave and any other material employee benefit plan, program or arrangement other than the payment or salary maintained, sponsored or contributed to by any Company Party or under which any Company Party has any liability, contingent or otherwise (an "ERISA Affiliate"collectively, “Benefit Plans”). With respect to any Benefit Plan, (i) no Claims (other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge of the Company, threatened; (ii) to the Knowledge of the Company, no facts or circumstances exist that would give rise to any such Claims; (iii) except as set forth on Schedule 3.18(a), for there is no administrative investigation, audit or other administrative proceeding by the benefit Department of any employee Labor (the “DOL”), the Pension Benefit Guaranty Corporation, the Internal Revenue Service or former employee other Governmental Authority pending or, to the Knowledge of the Company Company, threatened; (iv) each Benefit Plan which is intended to be qualified within the meaning of Code Section 401(a) is so qualified and has received, or any of is entitled to rely upon, a favorable determination or opinion letter as to its ERISA Affiliates (the "Plans") isqualification, and nothing has occurred, whether by action or failure to act, that would reasonably be expected to cause the loss of such qualification. Each Benefit Plan has been operated in all material respects in accordance with its terms and in compliance (including with the making requirements of governmental filings) with all applicable Laws, or has otherwise been corrected in accordance with the terms of a government sponsored correction program. Except as set forth on Schedule 3.18(a), all contributions (including ERISA all employer contributions and employee salary reduction contributions), premiums and expenses to or in respect of each Benefit Plan have been timely paid in full or, to the applicable provisions extent not yet due, have been adequately accrued on the Financial Statements. No Company Party is under any obligation to indemnify any Person against any Taxes resulting from the application of Section 409A of the Code.
(b) Correct and complete copies of the following documents, except for failures that would not, individually or in with respect to each of the aggregateBenefit Plans, have a Company Material Adverse Effectbeen made available or delivered to Purchaser by the Company, to the extent applicable: (i) all plan documents and related trust documents, insurance contracts or other funding arrangements, and all amendments thereto; (ii) each of the Plans intended three (3) most recent Forms 5500 or other forms required to be "qualified" within filed annually with the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, DOL and all schedules thereto; (iii) no "reportable event," as such term is defined the results of non-discrimination testing for the three (3) most recently completed years; (iv) the most recent actuarial report, if any; (v) the most recent IRS determination or opinion letter; (vi) all correspondence (other than in Section 4043(cconnection with a routine filing), rulings or opinions issued by the DOL or the IRS and all material correspondence (other than in connection with a routine filing) of ERISA (for which the 30-day notice requirement from any Company Party to the Pension DOL or the IRS; (vii) the most recent summary plan descriptions; and (viii) written summaries of all non-written Benefit Guaranty Corporation Plans.
("PBGC"c) No Company Party maintains, sponsors or contributes to, nor has not any Company Party maintained, sponsored or been waived)obligated to contribute to, has occurred with respect to since January 1, 2009, any Benefit Plan that which is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code. No event has occurred and no condition exists that would subject any Company Party, either directly or by reason of their affiliation with any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), whether (c), (m) or not waived and (ii) neither o)), to any Tax, Lien, or other material liability imposed by ERISA, the Code or other applicable Laws. No Company Party nor any ERISA Affiliate has incurred member of its Controlled Group maintains retiree life or retiree health insurance plans that provide for continuing benefits or coverage for any liability participant or any beneficiary of a participant except as may be required under Title IV the Consolidated Omnibus Budget Reconciliation Act of ERISA except for required premium payments to 1985, as amended (“COBRA”) and at the PBGC, which payments have been made when due, sole expense of the participant or any participant’s beneficiary. No Company Party and no events have occurred which are reasonably likely to give rise to any liability member of the Controlled Group of any Company Party has an obligation to contribute to, nor had an obligation since January 1, 2009 to contribute to, a “multiemployer plan”, within the meaning of Section 3(37) or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(cSection 4001(a)(3) With respect to each Plan that is subject to Title IV of ERISA, (i) the . The Company has provided to Parent Parties and the Purchaser copies any member of the most recent actuarial valuation report prepared for such Plan prior to Controlled Group of any Company Party that maintains a “group health plan” within the date hereof, (iimeaning of Section 5000(b)(1) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan Code has complied in all material respectsrespects with the notice and continuation requirements of Section 4980B of the Code, COBRA, Part 6 of Subtitle I of ERISA and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectregulations thereunder.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or set forth on Schedule 3.18(d), no Benefit Plan exists that, as disclosed in the Disclosure Letter, the consummation a result of the transactions contemplated by this Agreement will not (i) entitle Agreement, whether alone or in connection with any other event, would result in the payment to any current or former employee employee, director or officer consultant of any Company Party of any money or other property or would result in the acceleration or provision of any other rights or benefits to any current or former employee, director or consultant of any Company Party, whether or not such payment, right or benefit would constitute a parachute payment within the meaning of Code Section 280G.
(e) No Company Party will as a result of the Company transactions contemplated by this Agreement, whether alone or in connection with any other events, be obligated to make a payment to an individual or individuals that would be nondeductible by reason of Section 280G or Section 4999 of the Code (or any ERISA Affiliate similar provision of state, local or foreign Law).
(f) Each Benefit Plan or other contract, plan, program, agreement or arrangement that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A(d)(1) of the Code) has (i) been maintained and operated since January 1, 2005 in good faith compliance with Section 409A of the Code and all applicable Treasury regulations promulgated thereunder so as to severance payavoid any Tax, unemployment compensation penalty or interest under Section 409A of the Code and, as to any other paymentsuch plan in existence prior to January 1, 2005, has not been “materially modified” (within the meaning of IRS Notice 2005-1) at any time after October 3, 2004, or has been amended in a manner that conforms with the requirements of Section 409A of the Code, and (ii) accelerate since January 1, 2009, been in documentary and operational compliance with Section 409A of the time of payment or vesting or increase the amount of compensation due any such employee or officerCode and all applicable IRS guidance promulgated thereunder in all material respects.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent Schedule 5.9(a) sets forth a list of each bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plan, program or agreement, and the Purchaser, (i) each "other employee benefit plan" (as defined in Section 3(3) , program or agreement, sponsored, maintained or contributed to or required to be contributed to by any of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (Companies or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its the Companies (individually a “Plan” and collectively, the “Plans”). Schedule 5.9(a) identifies each of the Plans that is an “employee pension plan,” as that term is defined in Section 3(3) of ERISA Affiliates (such plans being hereinafter referred to collectively as the "“ERISA Plans"”). Seller has delivered or made available to Purchaser complete and accurate copies of all Plans (including all amendments thereto), available summary plan descriptions thereof, the Form 5500 annual reports for the three most recent plan years and the actuarial valuation report for the three most recent plan years with respect to each Plan (to the extent applicable).
(b) is, and Each Plan has been created, operated and administered in all material respects in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including .
(c) No liability under Title IV of ERISA and the applicable provisions has been incurred by any of the CodeCompanies or any ERISA Affiliate that has not been satisfied in full, except for failures and, to the Knowledge of Seller, no condition exists that would notreasonably be expected to result in any of the Companies or any ERISA Affiliate of incurring a liability under Title IV of ERISA, individually other than liability for premiums due the Pension Benefit Guaranty Corporation (which premiums have been paid when due). Except as set forth in Schedule 5.9(c), the assets of each ERISA Plan are at least equal in value to the present value of the accrued benefits of the participants in such ERISA Plan.
(d) Full payment has been made of all amounts that any of the Companies or any ERISA Affiliate is required to pay under the terms of each ERISA Plan and Section 412 of the Code as of the last day of the most recent Plan year thereof ended prior to the date of this Agreement, and all such amounts properly accrued through the Closing Date with respect to the current Plan year thereof will be paid on or prior to the Closing Date or will be properly recorded in the aggregate, have a Company Material Adverse Effect, (ii) each financial statements of the Plans Companies in accordance with the Accounting Principles.
(e) No ERISA Plan is a “multiemployer plan,” as such term is defined in Section 3(37) of ERISA (a “Multiemployer Plan”) nor have any of the Companies or any ERISA Affiliate at any time been a participating employer in any Multiemployer Plan, nor have any of the Companies or any ERISA Affiliate incurred or been subject to a claim for withdrawal liability or any other liability in respect of any Multiemployer Plan.
(f) Each ERISA Plan that is intended to be "“qualified" ” within the meaning of Section 401(a) of the Code has been determined by received a favorable determination letter to the Internal Revenue Service to be effect that it is so qualified, (iii) no "reportable event," as such term is defined in qualified and that the trusts maintained thereunder are exempt from taxation under Section 4043(c501(a) of ERISA (for which the 30-day notice requirement Code, and, to the Pension Benefit Guaranty Corporation Knowledge of Seller, no circumstances exist that would reasonably be expected to result in such Plan no longer being qualified.
("PBGC"g) has not been waivedExcept as set forth in Schedule 5.9(g), has occurred no Plan provides benefits, including medical, surgical or hospitalization benefits (whether or not insured), with respect to any Plan that is subject to Title IV current or former employees of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company Companies or any ERISA Affiliate ever contributed beyond their retirement or been required to contribute to other termination of service (other than coverage mandated by applicable Laws), and neither any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company Companies nor any ERISA Affiliate has incurred any liability under Title IV binding obligation to provide any employee or group of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in employees with any such case, which presents a risk benefits upon their retirement or termination of liability which would, individually or in the aggregate, have a Company Material Adverse Effectemployment.
(ch) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits Except as set forth in Schedule 5.9(h), neither the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status execution and delivery of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in by Seller nor the Disclosure Letter, performance by Seller of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby will not (i) entitle any current or former director, officer or employee or officer of any of the Company Companies or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, payment from any of the Companies or (ii) accelerate the time of payment or vesting vesting, or increase the amount of compensation due any such employee director, officer or officeremployee.
Appears in 1 contract
Samples: Stock Purchase Agreement (Hayes Lemmerz International Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent Section 3.9(a) of the Company Disclosure Schedule sets forth a true and complete list (or, in the Purchasercase of an unwritten plan, a description) of all material employee benefit plans, arrangements, contracts or agreements (including employment agreements, severance agreements and managers' insurance plans) of any type, statutory or otherwise, (i) each "employee benefit plan" (as defined including but not limited to plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or Company, any of its subsidiaries Subsidiaries or any trade or business, whether or not incorporatedincorporated (an "ERISA Affiliate"), that which together with the Company would be deemed a "single employer" within the meaning of Section 4001 414(b), 414(c) or 414(m) of ERISA the Internal Revenue Code of 1986, as amended (an the "ERISA AffiliateCode"), for or the benefit regulations, issued under Section 414(o) of the Code ("Benefit Plans").
(b) With respect to each Benefit Plan: (i) if intended to qualify under Section 401(a) of the Code, such plan so qualifies, and its trust is exempt from taxation under Section 501(a) of the Code, no condi- tion exists that would reasonably be expected to affect such qualification, and except as set forth on Section 3.9(b) of the Company Disclosure Schedule, there have been no amendments to any such Benefit Plan which are not the subject of a favorable determination letter; (ii) such plan has been administered in all material respects in accordance with its terms and U.S. federal, state or local, statutes, orders or governmental rules or regulations, including but not limited to ERISA and the Code, no notice has been issued by any Governmental Entity questioning or challenging such compliance, and no condition exists that would be expected to affect such compliance; (iii) no breaches of fiduciary duty have occurred which might reasonably be expected to give rise to material liability on the part of the Company; (iv) no disputes are pending, or, to the Company's knowledge, threatened that might reasonably be expected to give rise to material liability on the part of the Company; (v) no prohibited transaction (within the meaning of Section 406 of ERISA) has occurred that would give rise to material liability on the part of the Company, any ERISA Affiliate or any of their employees, shareholders or directors; and (vi) all contributions and premiums due as of the date hereof in respect of any Benefit Plan (taking into account any extensions for such contributions and premiums) have been made in full or accrued on the Company's balance sheet forming part of the Financial Statements.
(c) Except as set forth in Section 3.9(c) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate (i) has incurred an accumulated funding deficiency, as defined in the Code and ERISA, or (ii) has incurred any material liability under Title IV of ERISA with respect to any employee benefit plan that is subject to Title IV of ERISA.
(d) With respect to each Benefit Plan that is a "welfare plan" (as defined in section 3(1) of ERISA), except as disclosed in Section 3.9(d) of the Company Disclosure Schedule, no such plan provides medical or death benefits with respect to current or former employee employees of the Company or any of its ERISA Affiliates Subsidiaries beyond their termination of employment, other than as required by law.
(the "Plans"e) is, and has been operated Except as set forth in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a3.9(e) of the Code has been determined by Company Disclosure Schedule, neither the Internal Revenue Service execution of this Agreement nor the consummation of the transactions contemplated hereby will (i) entitle any individual to be so qualifiedseverance pay or accelerate the time of payment or vesting, or increase the amount, of compensation or benefits due to any individual.
(iiif) There is no Benefit Plan that is a "reportable eventmultiemployer plan," as such term is defined in Section 4043(c3(37) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(cg) With respect to each Plan that is subject to Title IV of ERISABenefit Plan, (i) the Company has provided previously delivered to Parent or its representatives accurate and the Purchaser complete copies of all plan documents, summary plan descriptions, summary of material modifications, trust agreements and other related agreements, including all amendments to the foregoing; the most recent actuarial valuation report prepared for such Plan prior to annual report; the date hereof, (ii) the annual and periodic accounting of plan assets and liabilities in respect of the accrued benefits as set forth in two most recent plan years; the most recent determination letter received from the United States Internal Revenue Service (the "Service"); and the actuarial valuation report prepared by valuation, to the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of extent any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer foregoing may be applicable to a particular Benefit Plan, in respect of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officertwo most recent plan years.
Appears in 1 contract
Samples: Merger Agreement (HFS Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent The Company SEC ----------------------------- Reports and the Purchaser, (i) Company Disclosure Letter set forth each "material employee or director benefit plan" (as defined in , arrangement or agreement, including without limitation any employee welfare benefit plan within the meaning of Section 3(33(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and all other employee benefit, any bonus, incentive, deferred compensation, vacation, stock option (or other equity-based)purchase, stock option, severance, employment, change of control or fringe benefit plan, program or agreement (excluding any multi-employer plans as defined in control, welfare Section 3(37) of ERISA (including posta "Multi-retirement medical and life insuranceemployer Plan") and fringe benefit plans (whether or not subject to ERISAany multiple employer plan within the meaning of Section 413(c) of the Code) that is sponsored, maintained or sponsored contributed to by the Company or any of its subsidiaries or by any trade or business, whether or not incorporated, that all of which together with the Company would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an the "ERISA AffiliateCompany Plans").
(b) Except as disclosed in the Company SEC Reports or in the Company Disclosure Schedule, for (i) there have been no prohibited transactions within the benefit meaning of Section 406 or 407 of ERISA or Section 4975 of the Code with respect to any employee or former employee of the Company Plans that could result in penalties, taxes or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that liabilities which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) no Company Plan is subject to Title IV of ERISA, (iii) each of the Company Plans has been operated and administered in accordance with applicable laws during the period of time covered by the applicable statute of limitations, except for failures to comply which would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (iv) each of the Company Plans which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service IRS to be so qualified, (iii) no "reportable event," as qualified and such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") determination has not been waived)revoked by failure to satisfy any condition thereof or by a subsequent amendment thereto or a failure to amend, except that it may be necessary to make additional amendments retroactively to maintain the "qualified" status of such Company Plans, and the period for making any such necessary retroactive amendments has occurred with respect not expired, (v) to the knowledge of the Company and its subsidiaries, there are no pending, threatened or anticipated claims involving any Plan that is subject to Title IV of ERISA the Company Plans other than claims for benefits in the ordinary course or claims which presents a risk of liability to any governmental entity or other person whichwould not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (vi) no Company Plan provides post-retirement medical benefits to employees or directors of the Company or its subsidiaries beyond their retirement or other termination of service, other than coverage mandated by applicable law, (vii) all material contributions or other amounts payable by the Company or its subsidiaries as of the date hereof with respect to each Company Plan in respect of current or prior plan years have been paid or accrued in accordance with generally accepted accounting principles, (viii) with respect to each Multi-employer Plan contributed to by the Company, to the knowledge of the Company and its subsidiaries, as of the date hereof, none of the Company or its subsidiaries has received any notification that any such Multi-employer Plan is in reorganization, has been terminated or is insolvent, (ix) the Company and its subsidiaries has complied in all respects with the Worker Adjustment and Retraining Notification Act, except for failures which would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, and (ivx) there are no pendingact, omission or transaction has occurred with respect to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of any Company Plan that has resulted or against, could result in any liability of the Plans Company or any trusts related thereto subsidiary under Sections 409 or 502(c)(1) or (l) of ERISA or Chapter 43 of Subtitle (A) of the Code, except for liabilities which wouldwould not reasonably be expected, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits Except as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respectsCompany Disclosure Schedule, and (iii) since excluding payments in respect of outstanding Options, neither the date execution and delivery of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, nor the consummation of the transactions contemplated by this Agreement hereby will not (i) entitle result in any current material payment (including, without limitation, severance or former "excess parachute payment" (within the meaning of Section 280G of the Code)) becoming due to any director or employee or officer of the Company or any ERISA Affiliate to severance payof its subsidiaries under any Company Plan, unemployment compensation or any other payment, or (ii) accelerate materially increase any benefits otherwise payable under any Company Plan or (iii) result in any acceleration of the time of payment or vesting or increase the amount of compensation due any such employee or officerbenefits. For purposes of this paragraph (c) only, "material" shall mean in excess of $10 million.
Appears in 1 contract
Samples: Merger Agreement (MGM Grand Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (iSchedule 3.23(a) sets forth each "employee benefit plan," (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentiveprofit sharing, stock option (retirement, income, dental, medical, disability, health, or other equityplans, programs, policies agreements, or arrangements involving direct or indirect compensation (excluding workers' compensation, unemployment compensation and similar government-based)mandated programs) currently or previously maintained, severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether contributed to or not subject to ERISA) maintained or sponsored entered into by the Company Jotter or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), Subsidiaries for the benefit of any employee or former employee of the Company Jotter or its Subsidiaries under which Jotter or any of its ERISA Affiliates Subsidiaries has any present or future obligation or liability (collectively, the "Employee Plans") is). Copies of all Employee Plans (and, if applicable, related trust agreements, insurance contracts or other funding related agreements, the most recent funding, financial or information return or statements, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Lawsmaterial correspondence, including ERISA without limitation, correspondence with Governmental Entities and internal memoranda relating to the applicable provisions plans) and all amendments thereto and material written interpretations thereof have been provided to SAFLINK. Neither Jotter nor any of the Code, except for failures that would notits Subsidiaries has any Employee Plan which, individually or in the aggregatecollectively, have a Company Material Adverse Effect, constitute(s) (iii) each of the Plans intended to be an "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable eventemployee pension benefit plan," as such term is defined in Section 4043(c3(2) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)ERISA, has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (ivii) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan," (within the meaning as defined in Section 3(37) of ERISA, or as defined under applicable pension law; or (iii) nor has a "registered pension plan", or "retirement compensation arrangement" both as defined in the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer planIncome Tax Act (Canada).
(b) No other entity ("ERISA Affiliate") that is a member of a "controlled group of corporations" with or under "common control" with Jotter, as defined in Section 414(b) or 414(c) of the Code currently or previously maintained, contributed or entered into an employee benefit plan, as defined in Section 3(3) of ERISA.
(c) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to the date of this Agreement.
(d) Schedule 3.23(d) sets forth each severance or other similar contract, arrangement or policy and each plan, agreement, policy or arrangement (written or oral) providing for insurance coverage (including any self-insured arrangements),vacation benefits, disability benefits, early retirement benefits, death benefits, hospitalization benefits, health, medical or dental treatments or expenses, supplementary employment insurance retirement benefits, deferred compensation, profit-sharing, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of compensation or post-retirement benefits that (i) No Plan is not an Employee Plan, (ii) is entered into, maintained or contributed to, as the case may be, by Jotter or its Subsidiaries and (iii) covers any employee or former employee of Jotter or any of its Subsidiaries. Such contracts, plans and arrangements as are described in this Section are herein referred to collectively as the "Benefit Arrangements." Each Benefit Arrangement has incurred an been maintained in substantial and material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations that are applicable to such Benefit Arrangements.
(e) Except for continued "accumulated fund deficiencyCOBRA" health coverage required pursuant to Code Section 4980B, neither Jotter nor any of its Subsidiaries is a party to any Employee Plan, Benefit Arrangement or other agreement, contract, arrangement or policy, written or unwritten, that requires Jotter or any of its Subsidiaries to provide, at any cost to Jotter or any of its Subsidiaries, any health or life insurance coverage to any former employee of Jotter or any of its Subsidiaries.
(f) Except as described in Schedule 3.23, neither Jotter nor any of its Subsidiaries is a party to any contract, instrument, agreement or arrangement with a "disqualified individual" (as defined in Section 302 of ERISA or Section 412 280G(c) of the Code), whether ) that could result in a disallowance of the deduction for any "excess parachute payment" (as defined in Section 280G(b)(i) of the Code) or not waived and (ii) neither the Company nor subject any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments such disqualified individual to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability excise tax imposed under Section 4999 of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse EffectCode.
(cg) With respect to each Each Employee Plan that is subject to Title IV and Benefit Arrangement complies in all material respects with all applicable requirements of ERISA, (i) the Company has provided to Parent Age Discrimination in Employment Act of 1967, as amended, and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereofregulations thereunder, (ii) the assets and liabilities in respect Title VII of the Civil Rights Act of 1964, as amended, and the regulations thereunder, (iii) any applicable provisions of the Code, including Section 4980B thereof, and (iv) any other applicable law.
(h) There is no pending or, to the knowledge of Jotter and the Signing Holders, threatened litigation, investigation, proceeding, grievance, arbitration, or claim relating to any Employee Plan or Benefit Arrangement. All contributions, premiums or other amounts due under each Employee Plan or Benefit Arrangement have been paid or accrued benefits as set forth on the books of Jotter and have been duly made in accordance with the most recent actuarial valuation report prepared by terms of the Plan's actuary fairly presented Employee Plans or Benefit Arrangement and applicable laws. Each Employee Plans or Benefit Arrangement is fully funded or fully insured and no unfunded liability or other deficit exists thereunder.
(i) Each of the funded status of such Plan Employee Plans and Benefit Arrangements and each fund established thereunder has been established, operated, administered, and invested in all material respectsrespects in accordance with its terms and with the requirements of all applicable laws and each of the Employee Plans or Benefit Arrangements is in good standing under, and (iii) since the date of such valuation report there has been no adverse change duly registered where required by, or is qualified in accordance with, such laws. No fact or circumstance exists that could adversely affect the funded tax-exempt status of any such Employee Plan which would, individually or in the aggregate, have a Company Material Adverse EffectBenefit Arrangement.
(dj) Neither All obligations regarding the Company nor Employee Plans or Benefit Arrangements have been satisfied and there are no accrued or pending obligations of the Employee Plans or Benefit Arrangements out of the ordinary course of business consistent with past practice. There are no outstanding material defaults or violations by any ERISA Affiliate has failed to make any contribution or payment person relating to any Employee Plan which has resulted or could result in Benefit Arrangement, and no Tax is owing or exigible under any of the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse EffectEmployee Plans.
(ek) Except as provided for in this Agreement There exists no undertaking or as disclosed in the Disclosure Lettercommitment whether legally binding or not, the consummation of the transactions contemplated by this Agreement will not (i) entitle to create any current additional Employee Plan or Benefit Arrangement or to change any existing Employee Plan or Benefit Arrangement that would affect any employee or former employee or officer of the Company their dependents or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officerbeneficiaries.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Merger (Saflink Corp)
Employee Benefit Plans; ERISA. a. With respect to each employee benefit, retirement or deferred compensation plan or arrangement (a) Except as previously disclosed including but not limited to Parent and the Purchaser, (i) each "employee benefit plan" (as defined any plans described in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefitsponsored, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored contributed to by the Company or its subsidiaries Reading or any trade or business, whether or not incorporated, that which together with Reading would be deemed a "single employer" within the meaning of Section 4001 414(b), (c) or (m) of the Code or section 4001(b)
(1) of ERISA (an a "Reading ERISA Affiliate"), for ) within six years prior to the benefit of any employee Effective Time (each a "Reading Benefit Plan"): (i) if intended to qualify under section 401(a) or former employee 401(k) of the Company or any Code, such plan satisfies the requirements of such sections, has received a favorable determination letter from the Internal Revenue Service with respect to its ERISA Affiliates (the "Plans") isqualification, and its related trust has been operated determined to be exempt from tax under section 501(a) of the Code and, to the knowledge of Reading, nothing has occurred since the date of such letter to adversely affect such qualification or exemption; (ii) each such plan has been administered in accordance substantial compliance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Codelaw, except for failures any noncompliance with respect to any such plan that would not, individually or could not reasonably be expected to result in the aggregate, have a Company Reading Material Adverse Effect; (iii) neither Reading nor any Reading ERISA Affiliate has engaged in, and Reading and each Reading ERISA Affiliate do not have any knowledge of any Person that has engaged in, any transaction or acted or failed to act in any manner that would subject Reading or any Reading ERISA Affiliate to any liability for a breach of fiduciary duty under ERISA that could reasonably be expected to result in a Reading Material Adverse Effect; (iiiv) no disputes are pending or, to the knowledge of Reading or any Reading ERISA Affiliate, threatened; (v) neither Reading nor any Reading ERISA Affiliate has engaged in, and Reading and each Reading ERISA Affiliate do not have any knowledge of any person that has engaged in, any transaction in violation of Section 406(a) or (b) of ERISA or Section 4975 of the Plans intended Code for which no exemption exists under Section 408 of ERISA or Section 4975(c) -26- of the Code or Section 4975(d) of the Code that could reasonably be expected to be result in a Reading Material Adverse Effect; (vi) to the knowledge of Reading, there have been no "qualifiedreportable events" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) 4043 of ERISA (for which the 30-30 day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") of ERISA has not been waived)waived by the PBGC; (vii) all contributions due have been made on a timely basis (within, has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person whichwhere applicable, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section time limit established under section 302 of ERISA or Section 412 Code section 412); (viii) no notice of the Codeintent to terminate such plan has been given under section 4041 of ERISA and no proceeding has been instituted under section 4042 of ERISA to terminate such plan; and (ix) except for defined benefit plans (if applicable), whether or not waived and (ii) neither the Company nor such plan may be terminated on a prospective basis without any ERISA Affiliate has incurred any continuing liability under Title IV of ERISA except for required premium payments benefits other than benefits accrued to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has termination. All contributions made or required to be made under any Reading Benefit Plan meet the requirements for deductibility under the Code, and all contributions which are required and which have not been no adverse change in made have been properly recorded on the funded status books of any such Plan which would, individually Reading or in the aggregate, have a Company Material Adverse EffectReading ERISA Affiliate.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and of the Purchaser, Microsource Disclosure Letter lists (i) each "all the employee benefit plan" plans, programs and arrangements maintained for the benefit of any current or former employee, officer or director of Microsource (the "Plans") and (ii) all contracts and agreements relating to employment that provide for annual compensation in excess of $25,000 and all severance agreements, with any of the directors, officers or employees of Microsource (other than, in each case, any such contract or agreement that is terminable by Microsource at will without penalty or other adverse consequence) (the "Employment Contracts"). Giga-tronics has been furnished with a copy of each Plan, any currently effective summary plan descriptions and the most recent annual reports, actuarial reports, registration statements or other securities law filings and determination letters produced or filed with respect thereto, and each Employment Contract. Except as defined set forth in Section 3(33.13 of the Microsource Disclosure Letter: (i) none of the Plans is a multiemployer plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, ; (ii) each none of the Plans promises or provides retiree medical or life insurance benefits to any person; (iii) each Plan intended to be "qualified" within the meaning of qualified under Section 401(a) of the Code has been determined by received a favorable determination letter from the Internal Revenue Service to be so qualified, (iii) no the "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGCIRS") has not been waived), that it is so qualified and nothing has occurred with respect since the date of such letter to any Plan that is subject to Title IV affect the qualified status of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and such Plan; (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any none of the Plans promises or any trusts related thereto which wouldprovides severance benefits or benefits contingent upon a change in ownership or control, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISASection 280G of the Code; (v) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No each Plan has incurred an "accumulated fund deficiency" been operated in all material respects in accordance with its terms and the requirements of applicable law; (as defined in Section 302 vi) no Plan is or has been covered by Title IV of ERISA or Section 412 of the Code), whether or ; (vii) Microsource has not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any direct or indirect liability under under, arising out of or by operation of Title IV of ERISA except for required premium payments to in connection with the PBGCtermination of, which payments have been made when dueor withdrawal from, any Plan or other retirement plan or arrangement, and no events have occurred which are reasonably likely to fact or event exists that could give rise to any such liability; and (viii) Microsource has not incurred any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGCunder, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company and has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan complied in all material respectsrespects with, the Worker Adjustment Retraining Notification Act, and (iii) since the date of no fact or event exists that could give rise to liability under such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectact.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Giga Tronics Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent Section 3.9(a) of the Company Disclosure Schedule sets forth a true and complete list (or, in the Purchasercase of an unwritten plan, a description) of all material employee benefit plans, arrangements, contracts or agreements (including employment agreements, severance agree ments and managers' insurance plans) of any type, statutory or otherwise, (i) each "employee benefit plan" (as defined including but not limited to plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or Company, any of its subsidiaries Subsidiaries or any trade or business, whether or not incorporatedincorporated (an "ERISA Affiliate"), that which together with the Company would be deemed a "single employer" within the meaning of Section 4001 414(b), 414(c) or 414(m) of ERISA the Internal Revenue Code of 1986, as amended (an the "ERISA AffiliateCode"), for or the benefit regulations, issued under Section 414(o) of the Code ("Benefit Plans").
(b) With respect to each Benefit Plan: (i) if intended to qualify under Section 401(a) of the Code, such plan so qualifies, and its trust is exempt from taxation under Section 501(a) of the Code, no condition exists that would reasonably be expected to affect such qualification, and except as set forth on Section 3.9(b) of the Company Disclosure Schedule, there have been no amendments to any such Benefit Plan which are not the subject of a favorable deter mination letter; (ii) such plan has been administered in all material respects in accordance with its terms and U.S. federal, state or local, statutes, orders or governmental rules or regulations, including but not limited to ERISA and the Code, no notice has been issued by any Governmental Entity ques tioning or challenging such compliance, and no condition exists that would be expected to affect such compliance; (iii) no breaches of fiduciary duty have occurred which might reasonably be ex pected to give rise to material liability on the part of the Company; (iv) no disputes are pending, or, to the Company's knowledge, threatened that might reasonably be expected to give rise to material liability on the part of the Company; (v) no prohibited transaction (within the meaning of Section 406 of ERISA) has occurred that would give rise to material liability on the part of the Company, any ERISA Affiliate or any of their employees, shareholders or directors; and (vi) all contributions and premiums due as of the date hereof in respect of any Benefit Plan (taking into account any extensions for such contributions and premiums) have been made in full or accrued on the Company's balance sheet forming part of the Financial Statements.
(c) Except as set forth in Section 3.9(c) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate (i) has incurred an accumulated funding deficiency, as defined in the Code and ERISA, or (ii) has incurred any material liability under Title IV of ERISA with respect to any employee benefit plan that is subject to Title IV of ERISA.
(d) With respect to each Benefit Plan that is a "welfare plan" (as defined in section 3(1) of ERISA), except as disclosed in Section 3.9(d) of the Company Disclosure Schedule, no such plan provides medical or death benefits with respect to current or former employee employ ees of the Company or any of its ERISA Affiliates Subsidiaries beyond their termination of employment, other than as required by law.
(the "Plans"e) is, and has been operated Except as set forth in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a3.9(e) of the Code has been determined by Company Disclosure Schedule, neither the Internal Revenue Service execution of this Agreement nor the consummation of the transactions contem plated hereby will (i) entitle any individual to be so qualifiedseverance pay or accelerate the time of payment or vesting, or increase the amount, of compensation or benefits due to any individual.
(iiif) There is no Benefit Plan that is a "reportable eventmultiemp xxxxx plan," as such term is defined in Section 4043(c3(37) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(cg) With respect to each Plan that is subject to Title IV of ERISABenefit Plan, (i) the Company has provided previously delivered to Parent or its representatives accurate and the Purchaser complete copies of all plan documents, summary plan descriptions, summary of material modifications, trust agreements and other related agreements, including all amendments to the foregoing; the most recent actuarial valuation report prepared for such Plan prior to annual report; the date hereof, (ii) the annual and periodic accounting of plan assets and liabilities in respect of the accrued benefits as set forth in two most recent plan years; the most recent determination letter received from the United States Internal Revenue Service (the "Service"); and the actuarial valuation report prepared by valuation, to the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of extent any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer foregoing may be applicable to a particular Benefit Plan, in respect of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officertwo most recent plan years.
Appears in 1 contract
Samples: Merger Agreement (HFS Inc)
Employee Benefit Plans; ERISA. (a) Except There are no "employee pension benefit plans" as previously disclosed to Parent and the Purchaserdefined in Section 3(2) of ERISA ("Pension Plans"), "welfare benefit plans" as defined in Section 3(1) of ERISA (i) each "Welfare Plans"), or stock bonus, stock option, restricted stock, stock appreciation right, stock purchase, bonus, incentive, deferred compensation, severance, holiday, or vacation plans, or any other employee benefit plan, program, policy or arrangement covering employees (or former employees) employed in the United States that either is maintained or contributed to by the Company or any Company Subsidiary or any of their ERISA Affiliates or to which the Company or any Company Subsidiary or any of their ERISA Affiliates is obligated to make payments or otherwise may have any liability (collectively, the "Employee Benefit Plans") with respect to employees or former employees of the Company, the Company Subsidiaries, or any of their ERISA Affiliates. For purposes of this Agreement, "ERISA Affiliate" shall mean any person (as defined in Section 3(33(9) of ERISA) that is or has been a member of any group of persons described in Section 414(b), (c), (m) or (o) of the Employee Retirement Income Security Act of 1974Code, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by without limitation the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA Company Subsidiary.
(an "ERISA Affiliate"), for the benefit of any employee or former employee of the b) The Company or any of its ERISA Affiliates (the "Plans") isand each Company Subsidiary, and has been operated each of their Pension Plans and Welfare Plans, are in accordance material compliance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of ERISA, the Code and other applicable laws.
(c) All contributions to, and payments from, the Pension Plans which are required to have been made in accordance with the Pension Plans have been timely made, except where the failure to make such contributions or payments on a timely basis would not impair the Company's ability to consummate the Merger and the other transactions contemplated by this Agreement.
(d) All of the Company's Pension Plans intended to qualify under Section 401(a) of the Code so qualify and no event has occurred and no condition exists with respect to the form or operation of such Pension Plans which would cause the loss of such qualification or the imposition of any material liability, penalty or tax under ERISA or the Code, except for failures that those which would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended be reasonably expected to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not There are no (i) entitle any current or former employee or officer investigations pending or, to the knowledge of the Company Company, threatened by any Government Entity involving the Pension Plans or any ERISA Affiliate to severance payWelfare Plans, unemployment compensation or any other payment, or nor (ii) accelerate pending or, to the time knowledge of payment the Company, threatened claims (other than routine claims for benefits), suits or vesting proceedings against any Pension Benefit or increase Welfare Plan, against the amount assets of compensation due any of the trusts under any Pension Plan or Welfare Plan or against any fiduciary of any Pension Plan or Welfare Plan with respect to the operation of such employee plan or officer.asserting any rights or claims to benefits under any Pension Plan or against the assets of any trust under such plan, except for those which would not, individually or in the aggregate, give rise to any liability which would reasonably be expected to have a Company Material Adverse Effect. To the knowledge of the Company, there are no facts which would give rise to any liability under this Section 4.19
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Spectrian Corp /Ca/)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or could not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would reasonably be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would notexpected, individually or in the aggregate, to have a Company Material Adverse EffectEffect on AH, (i) all Employee Benefit Plans (as defined below) (other than any Employee Benefit Plan that is a "multiemployer plan" within the meaning of Section 3(37) of ERISA (a "Multiemployer Plan")) are in material compliance with all applicable requirements of Law, including ERISA and the Code, and (ii) neither AH nor any of its Subsidiaries nor any ERISA Affiliate (as defined below) has any liabilities or obligations with respect to any such Employee Benefit Plans, whether accrued, contingent or otherwise, that are not otherwise reflected on the AH Financial Statements, nor to the knowledge of AH, are any such liabilities or obligations expected to be incurred. The execution and delivery of, and performance of the transactions contemplated by this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Employee Benefit Plan that will or may result in acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee. The only severance agreements or severance policies applicable to AH or any of its Subsidiaries are the agreements and policies set forth in Section 3.7(a) of the AH Disclosure Schedule.
(b) With respect to each of its Plans, AH has heretofore made available to KT complete and correct copies of each of the following documents, as applicable: (i) a copy of the Plan (as defined below) and any amendments thereto; (ii) a copy of the most recent annual report; (iii) a copy of the most recent actuarial report; (iv) a copy of the most recent Summary Plan Description and all material modifications; (v) a copy of the trust or other funding agreement and any amendments thereto; and (vi) the most recent determination letter received from the Internal Revenue Service (the "IRS") with respect to each Plan that is intended to be qualified under Section 401 of the Code.
(c) Section 3.7(c) of the AH Disclosure Schedule sets forth a list of each employee of AH or any of its Subsidiaries who is a party to any agreement (whether written or oral) with respect to such person's employment by AH or any of its Subsidiaries for annual compensation in excess of $120,000. AH has made available to KT a complete and correct copy of each such written employment agreement and a complete and correct written summary of each such oral agreement.
(d) None of the Employee Benefit Plans is either (i) subject to Title IV of ERISA, or (ii) a money purchase plan, and neither AH, any of its Subsidiaries nor any ERISA Affiliate has maintained, contributed to or had an obligation to contribute to an employee benefit plan that is subject to Title IV of ERISA within the six year period preceding the date of this Agreement. None of the Employee Benefit Plans is a Multiemployer Plan. Each of the Employee Benefit Plans that is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined is so qualified and the trusts maintained thereunder are exempt from taxation under Section 501(a) of the Code. Except as set forth in Section 3.7(d) of the AH Disclosure Schedule, no Employee Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service (other than coverage mandated by applicable Law or benefits, the full cost of which is borne by the Internal Revenue Service to be so qualifiedcurrent or former employee). There are no material pending or threatened claims by or on behalf of any Employee Benefit Plan, by any employee or beneficiary covered under any such Employee Benefit Plan, or otherwise involving any such Employee Benefit Plan (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (other than routine claims for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waivedbenefits), . No prohibited transaction has occurred with respect to any Employee Benefit Plan that is subject to Title IV would result, directly or indirectly, in the imposition of ERISA which presents a risk of liability to any governmental entity an excise Tax or other person whichliability under the Code or ERISA, except for such a Tax or other liability that could not reasonably be expected, individually or in the aggregate, would to have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, Effect on behalf of or against, any of the Plans or any trusts related thereto which wouldAH. Except as could not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required Effect on AH, with respect to contribute to any multiemployer plan.
each foreign Plan: (i) No all amounts required to be reserved on account of each foreign Plan has incurred an "accumulated fund deficiency" (as defined have been so reserved in Section 302 of ERISA or Section 412 of accordance with reasonable accounting practices prevailing in the Code), whether or not waived country where such foreign Plan is established and (ii) neither each foreign Plan required to be registered with a Governmental Entity has been registered, has been maintained in good standing with the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when dueappropriate Governmental Entities, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change maintained and operated in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effectaccordance with its terms and applicable Law.
(e) Except as provided for set forth in this Agreement Section 3.7(e) of the AH Disclosure Schedule, no director or officer or other employee of AH or any of its Subsidiaries will become entitled to any termination, retirement, severance or similar payment, benefit or enhanced or accelerated benefit (including any acceleration of vesting or lapse of restrictions, repurchase rights or obligations with respect to any benefit under any equity plan or incentive or compensation plan or arrangement) as disclosed in the Disclosure Letter, the consummation a result of the transactions contemplated by this Agreement will not (ieither standing alone or in conjunction with any additional or subsequent events).
(f) entitle Any amount or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of any current or former employee or officer of the Company transactions contemplated by this Agreement by any employee, officer or director of AH or any ERISA Affiliate to severance pay, unemployment of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employee benefit plan or other compensation arrangement currently in effect would not be characterized as an "excess parachute payment" or any other a "parachute payment, or " (iias such terms are defined in Section 280G(b)(1) accelerate of the time of payment or vesting or increase the amount of compensation due any such employee or officerCode).
(g) As used in this Agreement:
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (iSchedule 5.9(a) lists each "employee benefit plan" (as defined in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other material employee benefitbenefit (including, without limitation, any non- qualified plans), bonus, deferred compensation, incentive, stock option (or other equity-based), severance, change in change-in- control, welfare (including post-retirement medical and life insurance) insurance and fringe benefit plans (whether maintained for the benefit of, or not subject contributed to ERISA) maintained or sponsored by the Company or its subsidiaries each Seller, respectively, or any trade or business, whether or not incorporatedincorporated (an "ERISA Affiliate"), that would be deemed a "single employer" within the meaning of Section section 4001 of ERISA the Employee Retirement Income Security Act of 1974 (an "ERISA AffiliateERISA"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates each Seller, respectively (the "Plans") is). The Sellers have heretofore delivered to the Buyer true, correct and has been operated in accordance with its terms and in compliance (including complete copies of each of the making of governmental filings) with all applicable LawsPlans, including all amendments to date.
(b) Each of the Plans that is subject to ERISA complies with ERISA and the applicable provisions of the Internal Revenue Code of 1986 (the "Code") and has been administered in accordance with ERISA and, except for failures that would notwhere applicable, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each Code. Each of the Plans intended to be "qualified" within the meaning of Section section 401(a) of the Code has been determined by received a timely determination letter from the Internal Revenue Service that it is so qualified and neither Seller nor the Shareholder knows of any facts or circumstances that would materially adversely affect such qualification prior to be so qualifiedand including the close of business on the day immediately preceding the Closing Date. Except as set forth in Schedule 5.9(b), (iii) no none of the Plans is subject to Title IV of ERISA. No "reportable event," ", as such term is defined in Section 4043(csection 4043(b) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation Board ("PBGC") has not been waived), has occurred with respect to any Plan that is subject Plan. There are no pending or, to Title IV the best knowledge of ERISA which presents a risk of liability to any governmental entity or other person whicheach Seller, individually or in the aggregate, would have a Company Material Adverse Effectrespectively, and (iv) there are no pendingthe Shareholder, or to the Company's knowledge threatened, threatened claims (other than routine claims for benefits) ), actions, suits or proceedings by, on behalf of or against, against any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. thereto.
(c) No Plan provides benefits including, without limitation, death or medical benefits (whether or not insured), with respect to any employees or former employees of either Seller beyond their retirement or other termination of service (other than (i) coverage mandated by applicable law, (ii) death benefits or retirement benefits under any "employee pension plan," as that term is defined in section 3(2) of ERISA, or (iii) benefits the full cost of which is borne by the current or former employee (or his or her beneficiary)).
(d) With respect to each Plan, neither Seller, the Shareholder nor any ERISA Affiliate has engaged in a "multiemployer planprohibited transaction" (as such term is defined in section 4975 or section 406 of ERISA) that would subject either Seller or the Buyer to any taxes, penalties or other liabilities resulting from prohibited transactions under section 4975 of the Code or section 409 or 502(i) of ERISA.
(e) Each Seller has complied with the notice and continuation of coverage requirements of section 4980B of the Code and the regulations thereunder with respect to each plan that is, or was during any taxable year of such Seller for which the statute of limitations on the assessment of federal income taxes remains open, by consent or otherwise, a group health plan within the meaning of section 4980B(g) of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(if) No Plan has incurred an "accumulated fund deficiencyAccumulated Funding Deficiency" (as defined in Section 302 section 302(a) of ERISA or Section 412 section 412(a) of the Code), whether or not waived and waived.
(iig) neither the Company Neither Seller nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGCor would incur a "withdrawal" or "partial withdrawal", which payments have been made when due, as defined in sections 4203 and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV 4205 of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to from any Plan which that has resulted or could would result in the imposition a withdrawal liability of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company either Seller or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any under such employee or officerPlan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Electric & Gas Technology Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent SCHEDULE 3.12 contains a true and the Purchasercomplete list of each pension, (i) retirement, profit sharing, deferred compensation, stock option, stock purchase, bonus, medical, welfare, disability, severance or termination pay, insurance or incentive plan, and each "other employee benefit plan" , program, agreement or arrangement, whether funded or unfunded, sponsored, maintained or contributed to or required to be contributed to by Seller, including without limitation, Seller's 401(k) plan (as defined in Section 3(3the "401(k) of the Employee Retirement Income Security Act of 1974, as amended ("ERISAPlan")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that together with Seller would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an a "Company ERISA Affiliate"), for the benefit of any employee or former terminated employee of the Company Seller or any of its Seller ERISA Affiliates Affiliate (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures ). SCHEDULE 3.12 identifies each Plan that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be is an "qualifiedemployee benefit plan," within the meaning of Section 401(a3(3) of ERISA (the "ERISA Plans").
(b) Seller does not now have, nor has it ever had, any unionized employees. Consequently, Seller does not participate currently and has never participated in and is not required currently and has never been required to contribute to or otherwise participate in any "multi-employer plan," as defined in Sections 3(37)(A) and 4001(a)(3) of ERISA and Section 414(f) of the Code Code.
(c) True and complete copies of each of the Plans and the trusts included in the 401(k) Plan have been furnished to Buyer. With respect to the 401(k) Plan, Seller has been determined delivered to Buyer the most recent Summary Plan Description.
(d) All contributions required by the Internal Revenue 401(k) Plan or by law with respect to all periods through the Closing Date shall have been made by such date (or provided for by Seller by adequate reserves on its financial statements) and no excise or other taxes have been incurred or are due and owing with respect to the 401(k) Plan because of any failure to comply with the minimum funding standards of ERISA and the Code.
(e) Seller does not currently maintain, and has never maintained, any defined benefit pension plan within the meaning of ERISA. There are no violations of ERISA or the Code with respect to the filing of applicable reports, documents, and notices regarding any Plan with the Secretary of Labor, Secretary of the Treasury, or the Pension Benefit Guaranty Corporation (the "PBGC") or furnishing such documents to participants or beneficiaries, as the case may be. No Plan is under audit by the Service to be so qualified, or the Department of Labor.
(iiif) no No "reportable eventprohibited transaction," as such term is defined in Section 4043(c) 4975 of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)Code and Section 406 of ERISA, has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, (and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not constitute or directly or indirectly result in such a "prohibited transaction") which could subject Seller, Buyer, or any officer, director or employee of any of the foregoing, or any 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.
(g) The present value, determined on a termination basis, of all accrued benefits, vested and unvested, under each Plan, determined using the actuarial valuation assumptions and methods (including interest rates) contained in the most recent actuarial report for such Plan, does not exceed the assets thereof allocable to such benefits.
(h) No welfare benefit plan (within the meaning of Section 3(1) of ERISA) provides for continuing benefits or coverage for any participant or beneficiary of a participant after such participant's termination of employment, except as may be required by COBRA at the expense of the participant or the beneficiary of the participant.
(i) entitle any current or former employee or officer Seller has complied with all of the Company or any requirements of Code Section 4980B and Part 6 of Title I of ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer"COBRA").
Appears in 1 contract
Samples: Asset Purchase Agreement (Outsource International Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and Section 2.10(a) of the Purchaser, (i) each "Disclosure Schedule lists all employee benefit plan" plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), ) and all other employee benefit, bonus, incentive, deferred compensation, stock option (option, restricted stock, stock appreciation rights, phantom stock rights, retiree medical or life insurance, supplemental retirement, severance or other equity-based)benefit plans, severanceprograms or arrangements, change in controland all termination, welfare (including post-retirement medical and life insurance) and fringe benefit plans (severance or other contracts, whether or not subject to any of the provisions of ERISA) maintained , which are or have been maintained, contributed to or sponsored by the Company or its subsidiaries Companies or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA Affiliate (an "ERISA Affiliate"), as hereinafter defined) for the benefit of any employee or former employee of the Company or any Companies (each item listed on Section 2.10(a) of its ERISA Affiliates (the Disclosure Schedule being referred to herein individually, as a "PLAN" and collectively, as the "PlansPLANS"). Seller has delivered to Purchaser, to the extent applicable, a complete and accurate copy of: (i) is, each written Plan and has been operated in accordance with its terms and in compliance descriptions of any unwritten Plan (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually amendments thereto whether or in the aggregate, have a Company Material Adverse Effect, not such amendments are currently effective); (ii) each summary plan description and all summaries of material modifications relating to a Plan; (iii) each trust agreement or other funding arrangement with respect to each Plan, including insurance contracts; (iv) the most recently filed Internal Revenue Service Form 5500 relating to each Plan; (v) the most recently received Internal Revenue Service determination letter for each Plan; and (vi) the three most recently prepared actuarial reports and financial statements in connection with each Plan. Neither Seller nor the Companies have made any commitment (x) to create or cause to exist any Plan not set forth on Section 2.10(a) of the Plans intended Disclosure Schedule or (y) to be modify, change or terminate any Plan.
(b) Except as disclosed in Section 2.10(b) of the Disclosure Schedule, none of the Plans, nor any employment, severance or other similar agreement to which either of the Companies is a party or bound (i) provides for the payment of or obligates the Companies to pay separation, severance, termination or similar-type benefits to any employee of the Companies or (ii) obligates the Companies to pay separation, severance, termination or similar-type benefits as a result of any transaction contemplated by this Agreement or as a result of a "qualifiedchange in control," within the meaning of such term under Section 401(a) 280G of the Code has been determined by the Internal Revenue Service to be so qualifiedCode of 1986, as amended (iii) no the "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation (CODE"PBGC") has not been waived), has occurred either alone or in conjunction with respect to any Plan that subsequent occurrence. There is subject to Title IV no commitment covering the employees of ERISA which presents a risk of liability to any governmental entity or other person whichthe Companies that, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or reasonably be expected to give rise to the Company's knowledge threatened, claims (other than routine claims for benefitspayment of any amount that would result in a material loss of tax deductions pursuant to Section 162(m) by, on behalf of or against, any of the Plans Code.
(c) Neither the Companies nor any ERISA Affiliate has maintained, contributed to or any trusts related thereto which would, individually or participated in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" multi-employer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) or a multiple employer plan subject to Sections 4063 and 4064 of ERISA, nor has any obligations or liabilities, including withdrawal, reorganization or successor liabilities, regarding any such plan. As used herein, the Company term "ERISA AFFILIATE" means any Person that is or any ERISA Affiliate ever contributed has been a member of a controlled group of organizations (within the meaning of Sections 414(b), (c), (m) or been required to contribute to any multiemployer plan.
(io) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither of which the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which Companies are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effectmember.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each "employee benefit plan" (as defined in Section 3(3Schedule 3.15(a) of the Employee Retirement Income Security Act of 1974Disclosure Schedules lists all benefit and compensation plans and contracts including, as amended ("ERISA"))but not limited to, and all other “employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" plans” within the meaning of Section 4001 3(3) of ERISA (an "ERISA Affiliate")ERISA, and deferred compensation, stock option, stock purchase, stock appreciation rights, stock-based incentive and bonus plans maintained or contributed to by Seller for the benefit of any employee or former employee employees of the Company or Business (collectively, the “Plans”). True and complete copies of all Plans, including, but not limited to, any trust instruments and insurance contracts forming a part of its ERISA Affiliates (the "any Plans") is, and all amendments thereto have been provided or made available to Buyer.
(b) Each of the Plans has been operated administered in accordance with its terms and in substantial compliance with applicable law (including the making of governmental filings) with all applicable Lawsincluding, including where applicable, ERISA and the applicable provisions of the Code), except for failures that would not, individually or in where the aggregate, failure to so administer such Plan could not reasonably be expected to have a Company Material Adverse Effect, .
(iic) each Each of the Plans intended to be "“qualified" ” within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and Seller knows of no fact or set of circumstances that has adversely affected, or is reasonably likely to affect adversely, the qualification of such Plan prior to the Closing.
(iiid) Except as set forth on Schedule 3.15(d) of the Disclosure Schedules, no "reportable eventPlan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Business for periods extending beyond their termination of service (by retirement or otherwise), other than (i) coverage mandated by COBRA or other applicable similar law, (ii) death benefits under any “pension plan," ” as such that term is defined in Section 4043(c3(2) of ERISA or (for iii) benefits the full cost of which is borne by the 30-day notice requirement current or former employee (or his beneficiary).
(e) There are no pending or, to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)Knowledge of Seller, has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, threatened claims (other than routine claims for benefits) by, on behalf of or against, against any of the Plans or any trusts related thereto which wouldexcept for those claims that are not, individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(if) No Plan Neither Seller nor any of its affiliates has incurred an "accumulated fund deficiency" incurred, and to the Knowledge of Seller, no event has occurred and no condition or circumstance exists that is reasonably likely to result, directly or indirectly, in, any unsatisfied liability (as defined in Section 302 including, without limitation, any indirect, contingent or secondary liability) of Seller or any such affiliate under Title IV of ERISA or Section 412 of the Code), whether Code or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV Section 302 of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to arising in connection with any liability of the Company employee pension benefit plan covered or an ERISA Affiliate under previously covered by Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by such sections of the PBGC, in any such case, which presents a risk of liability which would, individually Code or in the aggregate, have a Company Material Adverse EffectERISA.
(cg) With respect to each No Plan that is subject to Title IV a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect).
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed With respect to each Company Plan, the Company has made available to Parent a true, correct and complete copy of: (i) any plan documents, trust agreements, insurance contracts and other funding vehicles, and amendments thereto in effect as of the date of this Agreement; (ii) for the most recently ended plan year, all IRS Form 5500 series forms (and any financial statements and other schedules attached thereto) filed with respect to any Company Plan; (iii) all summary plan descriptions and subsequent summaries of material modifications with respect to each Company Plan in effect as of the date of this Agreement for which such descriptions and modifications are required under ERISA; and (iv) the most recent IRS determination letter for each Pension Plan which is intended to be qualified under Section 401(a) of the Code.
(b) Neither the Company nor any of its ERISA Affiliates maintains or has, within the previous six years, maintained a Pension Plan which is subject to Section 412 of the Code or Title IV of ERISA.
(c) Neither the Company nor any of its ERISA Affiliates currently maintains or has, within the previous six years, maintained or been obligated to contribute to any multiemployer plan, as defined in Section 3(37) of ERISA.
(d) No Company Plan that is a "welfare benefit plan" as defined in Section 3(1) of ERISA provides for continuing benefits or coverage for any participant or beneficiary or covered dependent or a participant after such participant's termination of employment, except to the extent required by law.
(e) Neither the Company nor any of its ERISA Affiliates is bound by any collective bargaining agreement or similar agreement to maintain or contribute to any Company Plan.
(f) Each Company Plan (i) has been administered in material compliance with its terms and is in material compliance with the applicable provisions of ERISA and has been administered in material compliance with the applicable provisions of ERISA, the Code and other applicable laws; (ii) which is intended to be a qualified plan within the meaning of Section 401(a) of the Code has a favorable determination from the IRS as to its qualified status or is within the remedial amendment period for making any required changes and the PurchaserCompany is not aware of any circumstances likely to result in revocation of any such favorable determination letter; and (iii) may, without liability, be amended, terminated or otherwise discontinued, except as specifically prohibited by applicable law.
(g) With respect to each Company Plan, (i) each there are no proceedings pending or, to the knowledge of the Company, threatened by the IRS, the Department of Labor, or any participant or beneficiary (other than claims for benefits in the ordinary course) with respect to the design or operation of the Company Plans; (ii) the Company has made or provided for all contributions required under the material terms of such Company Plans and any applicable laws for all periods through the date of this Agreement; and (iii) there have been no "employee benefit planprohibited transactions" (as described in Section 4975 of the Code or in Part 4 of Subtitle B of Title I of ERISA) for which a statutory, administrative, or regulatory exemption is not available.
(h) Section 5.13(h) of the Company Disclosure Schedule contains a true and -------------------------------------------------- complete list of all material employment contracts and other employee benefit arrangements with "change of control" or similar provisions and all severance agreements, in each case with executive officers or directors of the Company. The consummation of the transactions contemplated by this Agreement in and of themselves without regard to any other event, will not (i) entitle any employees of the Company or any of its subsidiaries to severance pay, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of the Company Plans, (iii) result in any payments under any of the Company Plans which would not be deductible under Section 280G of the Code, or (iv) cause any payments under any Company Plan to cease to be excluded from "applicable employee remuneration" for purposes of Section 162(m) of the Code. Neither the Company nor any of its subsidiaries has any obligations under non-qualified retirement plans under ERISA.
(i) For purposes of this Section 5.13, (i) "Company Plan" means (x) each ------------ employee pension benefit plan (as such term is defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) ("Pension ----- ------- Plan"); (y) each employee welfare benefit plan (as such term is defined in ---- Section 3(1) of ERISA) ("Welfare Plan") maintained by the Company and any of its ------------ ERISA Affiliates, and all other employee benefit, bonus, incentive(z) each stock option, stock option (or other equity-based)purchase, stock appreciation right and stock based plan and each material deferred compensation, employment, severance, change in control, welfare (including post-retirement medical incentive and life insurance) bonus plan or agreement maintained by the Company for the benefit of current or former employees or current or former directors of the Company whether written or oral, and fringe benefit plans (whether or not subject to ERISA; and (ii) maintained or sponsored by the Company or its subsidiaries or "ERISA Affiliate" means any trade or business, business whether --------------- or not incorporated, that would be deemed a "single employer" under common control with the Company within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"414(b), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effectc), (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(am), or (o) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in or Section 4043(c4001(b) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Siemens Aktiengesellschaft)
Employee Benefit Plans; ERISA. (a) Except Section 3.20 of the EMERALD DISCLOSURE SCHEDULE contains a true and complete list of all profit-sharing plans, deferred compensation, consulting, bonus, group insurance plans or agreements and all other incentive, welfare other than “payroll practices” as previously disclosed to Parent and the Purchaser, defined in Department of Labor Regulation Sections 2510.3-1(b) through (i) each "and in Section 2510.3-1(k) or employee benefit plans or agreements maintained for the benefit of employees or former employees of EMERALD (hereinafter collectively referred to as the “PLANS”). Copies of such PLANS, together with copies of (i) the most recent actuarial and financial reports prepared with respect to any qualified plans, (ii) the most recent annual reports filed with any governmental agency and (iii) all rulings and determination letters and any open requests for rulings or letters that pertain to any qualified plan" , have been made available to MBCN.
(b) Each PLAN which constitutes an “employee pension benefit plan,” as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("hereinafter referred to as “ERISA")”), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, is and has been operated administered in accordance material compliance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA governing documents and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans ERISA and any such employee pension benefit plan which is intended to be "qualified" within qualified under the meaning provisions of Section 401(a) of the Code CODE, is and has been determined by administered in material compliance with the Internal Revenue Service applicable provisions of the CODE.
(c) Each PLAN which constitutes an “employee welfare benefit plan,” as defined in Section 3(1) of ERISA, is and has been administered in material compliance with its governing documents and the applicable provisions of ERISA and each PLAN which constitutes a “group health plan,” as defined in Section 5000(b)(1) of the CODE, is and has been administered in material compliance with the continuation of coverage provisions contained in Section 4980B of the CODE.
(d) Each PLAN which is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, is and has been administered in material compliance with its governing documents and with any and all state or federal laws applicable to be so qualifiedsuch PLAN.
(e) Each PLAN which is a “nonqualified deferred compensation plan,” as defined in Section 409A of the CODE has, with respect to amounts subject to Section 409A of the CODE, been administered in a good faith attempt to comply with Section 409A of the CODE, IRS Notice 2005-1, Proposed Treasury Regulations issued under Section 409A of the CODE and IRS Notice 2006-79, and has not been materially modified after October 3, 2004.
(iiif) no "reportable event," EMERALD does not maintain any “employee pension plan” (as defined above) which is subject to the provisions of Title IV of ERISA.
(g) EMERALD does not maintain any PLAN which provides post-retirement medical, dental or life insurance benefits to any former employee of EMERALD, nor is EMERALD obligated to provide any such benefit to any current employee upon his or her retirement.
(h) EMERALD has not participated in, nor incurred any liability under, Section 4201 of ERISA for a complete or partial withdrawal from a multiemployer plan as such term is defined in Section 4043(c3(37) of ERISA ERISA.
(for which the 30-day notice requirement i) Neither EMERALD, nor any PLAN maintained by EMERALD, nor any fiduciary of any such PLAN, has incurred any material liability to the Pension Benefit Guaranty Corporation Corporation, the United States Division of Labor or to the Internal Revenue Service ("PBGC"hereinafter referred to as the “IRS”) has with respect to a PLAN.
(j) No prohibited transaction (which shall mean any transaction prohibited by Section 406 of ERISA and not been waived), exempt under Section 408 of ERISA) has occurred with respect to any Plan that is subject to Title IV of ERISA “employee benefit plan” (as defined above) maintained by EMERALD (i) which presents a risk of liability to any governmental entity or other person which, individually or would result in the aggregateimposition, directly or indirectly, of an excise tax under Section 4975 of the CODE or (ii) the correction of which would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer planMATERIAL ADVERSE EFFECT.
(ik) No Plan has incurred employee pension plan (as defined above) is intended to be an "accumulated fund deficiency" (employee stock ownership plan, as defined in Section 302 of ERISA or Section 412 4975(e)(7) of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse EffectCODE.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except Section 5.9(a) of the Company Disclosure Schedule lists, as previously disclosed of the date of this Agreement, all material Benefit Plans and separately identifies each material Foreign Benefit Plan. With respect to each Benefit Plan, if applicable, the Company has made available to Parent true and the Purchaser, complete copies of (i) each "employee benefit plan" the plan document (as defined in and, if applicable, related trust or funding agreements or insurance policies), (ii) the most recent summary plan description or prospectus and any summary of material modifications, (iii) the most recent annual report (including all schedules), (iv) if the Benefit Plan is intended to qualify under Section 3(3401(a) of the Employee Retirement Income Security Act of 1974Code, as amended ("ERISA"))the most recent determination, advisory, or opinion letter received from the IRS, and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare v) the most recent actuarial reports and financial statements.
(including post-retirement medical and life insuranceb) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, Each Benefit Plan is and has been operated in accordance material compliance with its terms and in compliance (including the making of governmental filings) with all applicable LawsLaw, including ERISA and the applicable provisions Code and has been administered in all material respects in accordance with its terms. There are no pending or, to the Knowledge of the CodeCompany, except threatened claims (other than claims for failures that would not, individually or benefits in the aggregateordinary course), lawsuits, charges, complaints, grievances, investigations, audits, proceedings or arbitrations that have a Company Material Adverse Effect, (ii) each of the Plans been asserted or instituted with respect to any Benefit Plan. Each Benefit Plan intended to be "qualified" within the meaning of qualified under Section 401(a) of the Code has been determined by is the Internal Revenue Service to be so qualifiedsubject of an unrevoked favorable determination, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which advisory, or opinion letter from the 30-day notice requirement IRS, and, to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)Knowledge of the Company, nothing has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in since the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any date of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could most recent such determination that would reasonably be anticipated expected to result in any claims being made against Purchaser by the PBGC, in any adversely affect such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effectqualification.
(c) With respect to each Neither the Company nor any Subsidiary or ERISA Affiliate of the Company (i) maintains, sponsors or contributes to, or has within the past six (6) years maintained, sponsored or contributed to, a Benefit Plan that is a “defined benefit plan” (as defined in ERISA Section 3(35)) or otherwise subject to Title IV of ERISA, (iii) the Company has provided any material liability with respect to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior any “defined benefit plan,” whether or not subject to the date hereofERISA, (iiiii) the assets has an “obligation to contribute” (as defined in ERISA Section 4212) to a Benefit Plan that is a “multiemployer plan” (as defined in ERISA Sections 4001(a)(3) and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects3(37)(A)), and (iiiiv) since has any liability, contingent or otherwise, under Title IV of ERISA with respect to a Benefit Plan. No Benefit Plan subject to ERISA holds securities issued by the date Company or any of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effectits current ERISA Affiliates.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution Subsidiary of the Company sponsors, maintains or payment contributes to any Plan which has resulted plan, program or could result in the imposition of a lien or the posting of a bond arrangement that provides for post-retirement or other security under ERISA or the Code which would have a Company Material Adverse Effectpost-employment welfare benefits, including life insurance (other than health care continuation coverage as required by Law).
(e) Except as provided for in contemplated by this Agreement, the execution and delivery of this Agreement or as disclosed in the Disclosure Letter, and the consummation of the transactions contemplated by this Agreement will not (either alone or in combination with another event) (i) entitle result in any current or former employee or officer of material payment from the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other paymentof its Subsidiaries becoming due, or materially increase the amount of any compensation due, to any Service Provider, (ii) accelerate increase any benefits otherwise payable under any Benefit Plan, (iii) result in the acceleration of the time of payment or vesting of any compensation or increase benefits from the Company or any of its Subsidiaries to any Service Provider, or (iv) limit or restrict the right of the Company to merge, amend or terminate any of the Benefit Plans. Without limiting the generality of the foregoing, no amount payable to any Service Provider (whether in cash or property or as a result of accelerated vesting) as a result of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement (either alone or together with any other event) under any Benefit Plan or other compensation due arrangement would be nondeductible under Sections 280G of the Code. Neither the Company nor any Company Subsidiary has any obligation to compensate any Service Provider for any excise taxes incurred by such Service Provider, including under Sections 409A and 4999 of the Code.
(f) To the Knowledge of the Company, (i) each Foreign Benefit Plan and related trust, if any, complies with and has been administered in material compliance with its terms and the Laws of the applicable foreign country, (ii) each Foreign Benefit Plan which, under the Laws of the applicable foreign country, is required to be registered or approved by any Governmental Entity, has been so registered or approved, and (iii) each Foreign Benefit Plan intended to qualify for special tax treatment meets all the requirements for such treatment. The Company and its Subsidiaries have complied in all material respects with all applicable Laws regarding participation in and contributions required to be made to any Mandated Benefit Plans.
(g) To the Knowledge of the Company, each Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Code Section 409A(d)(1)) has been operated since December 31, 2016 in compliance with applicable guidance under Code Section 409A and has been documented in accordance with Section 409A since January 1, 2016.
(h) The parties acknowledge that certain payments have been made or are to be made and certain benefits have been granted or are to be granted according to employment compensation, severance and other employee benefit plans of the Company and the Company Subsidiaries or officerpursuant to other arrangements with the Company and the Company Subsidiaries, including the Plans, to holders of Company Common Stock and other securities of the Company (the “Covered Securityholders”) (with all such plans and arrangements being collectively referred to as the “Company Arrangements”). All such amounts payable under the Company Arrangements (i) have been or are being paid or granted as compensation for past services performed, future services to be performed, or future services to be refrained from performing, by the Covered Securityholders (and matters incidental thereto) and (ii) were not, and are not, calculated based on the number of shares tendered or to be tendered into the Offer by the applicable Covered Securityholder. The adoption, approval, amendment or modification of each Company Arrangement has been approved as an employment compensation, severance or other employee benefit arrangement solely by independent directors of the Company in accordance with the requirements of Rule 14d–10(d)(2) under the Exchange Act and the instructions thereto and the “safe harbor” provided pursuant to Rule 14d–10(d)(2) is otherwise applicable thereto as a result of the taking prior to the execution of this Agreement of all necessary actions by the board of directors of the Company, the compensation committee of the board of directors of the Company (the “Company Compensation Committee”) or its independent directors. A true and complete copy of any resolutions of any committee of the Company Board reflecting any approvals and actions referred to in the preceding sentence and taken prior to the date of this Agreement has been made available to Parent prior to the execution of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (PARETEUM Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each Each "employee benefit plan," (as defined in within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or Holdings and/or any of its subsidiaries or any trade or businessorganization which, whether or not incorporatedtogether with Holdings and/or any such subsidiary (each, that an "ERISA Affiliate"), would be deemed treated as a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee 414 of the Company Code or to which Holdings or any such ERISA Affiliate contributes (or has any obligation to contribute) or is a party and in which any Business Personnel participates or under which any of its ERISA Affiliates them has accrued and remains entitled to any benefit (collectively, the "Employee Benefit Plans") is, is listed on Section 3.13(a) of the HOLDINGS DISCLOSURE SCHEDULE. Except as set forth on Section 3.13(a) of the HOLDINGS DISCLOSURE SCHEDULE: (i) each Employee Benefit Plan is in compliance with applicable law and has been administered and operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Codeterms, except for failures to the extent that any such noncompliance, administration or operation would not, individually or not result in the aggregate, have a Company Material Adverse Effect, material liability; (ii) each of the Plans Employee Benefit Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by received a favorable determination letter from the Internal Revenue Service Service, dated after December 31, 1993 and, to Holdings' Knowledge, no event has occurred and no condition exists which could reasonably be so qualified, expected to result in the revocation of any such determination; (iii) no neither Holdings (with respect to the Business) or any of the Transferred Companies is a participant in any "reportable eventmultiemployer plan," within the meaning of Section 4001(a)(3) of ERISA; (iv) the actuarial present value of the accumulated plan benefits (whether or not vested) under any Employee Benefit Plan covered by Title IV of ERISA as of the close of the plan year ended April 30, 1998 did not exceed the fair value of the assets allocable thereto; (v) the execution of this Agreement and consummation of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (A) (either alone or upon the occurrence of any additional or subsequent event) will or may result in any payment, "parachute payment" (as such term is defined in Section 4043(c280G of the Code) or (B) by itself will result in any material payment, severance, bonus, retirement, or increase any benefits or accelerate the payment or vesting of any benefits to any employee or former employee or director of Holdings or any of its subsidiaries (other than that which would be solely a liability of Parent); (vi) no Employee Benefit Plan provides for post-employment or retiree welfare benefits, except to the extent required by Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or such other similar law; (for vii) no Employee Benefit Plan maintained by Holdings or an ERISA Affiliate which the 30-day notice requirement is covered by Title IV of ERISA has been terminated and no proceedings have been instituted to the Pension Benefit Guaranty Corporation terminate or appoint a trustee to administer any such plan; (viii) no "PBGC"reportable event" (as defined in Section 4043 of ERISA) has not been waived), has occurred with respect to any Employee Benefit Plan that maintained by Holdings or an ERISA Affiliate and covered by Title IV of ERISA; (ix) no Employee Benefit Plan maintained by Holdings or an ERISA Affiliate which is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any Section 412 of the Plans Code or Section 302 or ERISA has incurred any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer planaccumulated funding deficiency," (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code)Code or Section 302 of ERISA, whether or not waived and obtained a waiver of any minimum funding standard or an extension of any amortization period under Section 412 of the Code or Section 303 or 304 of ERISA; (iix) neither the Company Holdings nor any ERISA Affiliate has incurred any unsatisfied withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability "multiemployer plan," within the meaning of Section 4001(a)(3) of ERISA; (xi) full payment has been timely made of all amounts which Holdings and/or any of its subsidiaries is required under applicable law or under any Employee Benefit Plan or related agreement to have paid as of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies last day of the most recent actuarial valuation report prepared for fiscal year of such Employee Benefit Plan ended prior to the date hereof, (ii) the assets and Holdings and each of its subsidiaries have made adequate provisions, in accordance with GAAP, in their financial statements for all obligations and liabilities under all Employee Benefit Plans or any related agreement or applicable law, and, to Holdings' Knowledge, no event has occurred and no condition exists that would reasonably be expected to result in respect a material increase in the level of such amounts paid or accrued for the most recently ended fiscal year; (xii) no Employee Benefit Plan provides for the payment of severance, termination, change in control or similar-type payments or benefits; (xiii) neither Holdings nor any of its subsidiaries, nor, to Holdings' Knowledge, any other "disqualified person" or "party in interest" (as defined in Section 4975(e)(2) of the accrued benefits as set forth Code and Section 3(14) of ERISA, respectively) has engaged in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such any transaction in connection with any Employee Benefit Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed that could reasonably be expected to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting material penalty pursuant to Section 502 of a bond or other security under ERISA, damages pursuant to Section 409 of ERISA or a tax pursuant to Section 4975 of the Code which would have a Company Material Adverse Effect.
Code; and (exiv) Except as provided no claim, action or litigation, has been made or commenced with respect to any Employee Benefit Plan (other than routine claims for in this Agreement or as disclosed benefits payable in the Disclosure Letterordinary course, the consummation and appeals of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any denied such employee or officerclaims).
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent Schedule 4.16 hereto sets forth a true and the Purchaser, (i) complete list of each "employee benefit plan, arrangement or agreement that is maintained or contributed to by the Company or any of its Subsidiaries or by any trade or business related thereto, whether or not incorporated (each Subsidiary and each such trade or business is referred to herein as an "ERISA Affiliate"), which together with the Company or any of its Subsidiaries would be deemed a "single employer" (as defined in within the meaning of Section 3(3) 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option ) (the "Company Plans") or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject with respect to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of which the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions Affiliate of the CodeCompany has any liability. Neither the Company nor any ERISA Affiliate of the Company has any formal plan or commitment to create any additional plan or modify any existing Company Plan, except for such modifications that are required by law.
(b) Each of the Company Plans that is subject to ERISA is in compliance with ERISA, except for any failures to be in such compliance that would not, individually or in the aggregate, aggregate have not had and could not reasonably be expected to have a Company Material Adverse Effect, (ii) ; each of the Company Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be is so qualified, (iiino event has occurred which may affect such qualification and the trusts maintained thereunder are exempt from taxation under Section 501(a) of the Code, except as has not had and could not reasonably be expected to have a Company Material Adverse Effect; no Company Plan has an accumulated or waived funding deficiency within the meaning of Section 412 of the Code, except as has not had and could not reasonably be expected to have a Company Material Adverse Effect; neither the Company nor any ERISA Affiliate of the Company has incurred, directly or indirectly, any liability to or on account of a Company Plan pursuant to Title IV of ERISA, except for such liability or liabilities that individually or in the aggregate have not had and could not reasonably be expected to have a Company Material Adverse Effect; no proceedings have been instituted to terminate any Company Plan that is subject to Title IV of ERISA; no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)ERISA, has occurred with respect to any Company Plan, except for any such reportable event that occurred more than three years before the date of this Agreement; and no condition exists that presents a material risk to the Company or an ERISA Affiliate of the Company of incurring a liability to or on account of a Company Plan that is subject pursuant to Title IV of ERISA ERISA, except for such conditions which presents a risk of liability to any governmental entity or other person which, individually or in the aggregateaggregate have not had and could not reasonably be expected to have a Company Material Adverse Effect.
(c) There are no facts or circumstances that would materially change the funded status of any Company Plan that is a "defined benefit" plan (as defined in Section 3(35) of ERISA) since the date of the most recent actuarial report for such plan, would each of which reports has been provided to Parent. No Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA) and no Company Plan is a multiple employer plan as defined in Section 413 of the Code. Except for contributions or amounts which either individually or in the aggregate have not had and could not reasonably be expected to have a Company Material Adverse Effect, and (iv) there all contributions or other amounts payable by the Company or any of its Subsidiaries as of the Effective Time with respect to each Company Plan in respect of current or prior plan years have been either paid or accrued on the consolidated balance sheet of the Company. There are no pending, threatened or to the Company's knowledge threatened, anticipated claims (other than routine claims for benefits) by, on behalf of or against, against any of the Company Plans or any trusts related thereto thereto, except for such claims which would, individually or in the aggregate, aggregate have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived had and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could not reasonably be anticipated expected to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company Company, nor any ERISA Affiliate of the Company, nor any Company Plan, nor any trust created thereunder, nor any trustee or administrator thereof has failed incurred any liability pursuant to make any contribution Section 409 or payment to any Plan which 502(i) of ERISA or Section 4975 or 4976 of the Code, that, in either case, individually or in the aggregate has resulted had or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would reasonably be expected to have a Company Material Adverse Effect.
(e) . No amounts payable under the Company Plans will, individually or in the aggregate, fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code. Except as provided for disclosed on Schedule 4.16, no Company Plan provides death or medical benefits (whether or not insured), with respect to current or former employees of the Company or any ERISA Affiliate of the Company beyond their retirement or other termination of service the cost of which is material to the Company and any of its Subsidiaries taken as a whole other than (i) coverage mandated by applicable law or (ii) death benefits under any "employee pension plan," as that term is defined in this Agreement or Section 3(2) of ERISA. Except as disclosed in the Disclosure Letteron Schedule 4.16, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate of the Company to severance pay, unemployment compensation or any other payment, except as expressly provided in this Agreement or (ii) accelerate the time of payment or vesting vesting, or increase the amount of compensation due any such employee or officer.
(e) All Company Plans comply in form and operation, and the Company and each ERISA Affiliate of the Company have complied with respect to the Company Plans, with all applicable Laws, except where the failure to comply has not had and could not reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Andrew Corp)
Employee Benefit Plans; ERISA. (a) Except Schedule 3.11(a) sets forth a true and complete list, as previously disclosed of the date of this Agreement, of each material Plan. With respect to each material Plan, the Company has made available to Parent true and complete copies of each of the Purchaserfollowing documents, as applicable: (i) each "employee benefit a copy of the Plan (including all amendments thereto), (ii) a copy of the past three (3) annual reports, financial statements and actuarial reports, if any, (iii) a copy of the most recent Summary Plan Description, if any, required under ERISA and any subsequent summary of material modifications, (iv) if the Plan is funded through a trust or any third-party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto), (v) if the Plan is intended to be qualified under Section 401(a) of the Code, the most recent determination letter received from the Internal Revenue Service, and (vi) all material written communications to or from any Governmental Authority for the past three years.
(i) No Plan is, or was during the past six years, subject to Section 302 or Title IV of ERISA; (ii) no Plan is a “multiemployer plan" (,” as such term is defined in Section 3(33(37) of ERISA; and (iii) no Plan is a “multiple employer plan” as described in Section 4063 or 4064 of ERISA or Section 413(c) of the Employee Retirement Income Security Act of 1974, as amended Code.
("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurancec) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, Each Plan was established and has been operated and administered in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures such instances that have not had, and would notnot reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, .
(iid) each of the Plans Each Plan that is intended to be "“qualified" ” within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement received a favorable determination letter to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived)effect that it is so qualified and, to the knowledge of the Company, nothing has occurred that would reasonably be expected to affect such qualification.
(e) As of the date hereof, there is no pending or, to the knowledge of the Company, threatened Litigation or audit by any Governmental Authority with respect to any Plan, by any employee or beneficiary covered under any Plan that is subject or otherwise involving any Plan, which if adversely determined would reasonably be expected to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect.
(f) Except as set forth in this Agreement or as set forth on Schedule 3.11(f), neither the execution and (iv) there are no pending, or to delivery of this Agreement nor the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any consummation of the Plans transactions contemplated hereby (alone or together with any trusts related thereto other event which wouldstanding alone would not by itself trigger such entitlement or acceleration) will (i) entitle any current or former director, individually officer or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning employee of ERISA) nor has the Company or any ERISA Affiliate ever contributed of its Subsidiaries to severance pay or been any other payment from the Company or any such Subsidiary, (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation or benefit due any such director, officer or employee or (iii) cause there to be a reportable event pursuant to Section 4043 of ERISA. Except as set forth on Schedule 3.11(f), there is no contract, agreement, plan or arrangement to which the Company or any of its Subsidiaries is a party or by which it is bound to compensate any current or former employee or other disqualified individual for excise taxes which may be required pursuant to contribute Section 4999 of the Code. As of the Closing Date, no amounts payable under the Plans or otherwise will fail to be deductible for U.S. federal income tax purposes by virtue of Section 280G, other than with respect to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" “disqualified individual” (as defined in Section 302 280G(c) of the Code) who fails to waive his or her rights to receive “parachute payments” (as defined in Section 280G(b)(2) of the Code) in accordance with the requirements of the stockholder vote contemplated under Section 5.09(e) hereof.
(g) No claim for material Taxes under Chapter 43 of Subtitle D of the Code or Section 5000 of the Code, or for material penalties under ERISA Section 502(c), 502(i) or 502(l) has been asserted against the Company or any of its Subsidiaries or ERISA Affiliates and, to the knowledge of the Company, there is no basis for any such claim. Except as reflected on the Financial Statements, no Plan that is a “welfare benefit plan” within the meaning of Section 3(1) of ERISA provides benefits to former employees of the Company or any of its Subsidiaries, other than pursuant to Section 4980B of the Code or any similar state Law.
(h) With respect to The Neiman Marcus Group, Inc. Retirement Plan (the “Pension Plan”): (i) there is no accumulated funding deficiency within the meaning of Section 412 of the Code)Code or Section 302 of ERISA, whether or not waived and (ii) neither no reportable event within the Company nor any ERISA Affiliate has incurred any liability under Title IV meaning of Section 4043(c) of ERISA except has occurred for required premium payments to which the PBGC, which payments have 30-day notice requirement has not been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effectwaived.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each "employee benefit plan" (as defined in Section 3(3) None of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries any Company ERISA Affiliate sponsors, maintains, has any obligation to contribute to, has liability under or is otherwise a party to, any trade or businessCompany Employee Benefit Plan.
(b) To the knowledge of the Company, whether or not incorporated, that would be deemed a "single employer" no prohibited transaction within the meaning of Section 4001 406 or 407 of ERISA (an "ERISA Affiliate")ERISA, for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and has been operated in accordance with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) 4975 of the Code has been determined by the Internal Revenue Service to be so qualified, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Company Employee Benefit Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person has occurred which, individually or in the aggregate, would is having or could be reasonably expected to have a Company Material Adverse Effect, and ;
(ivc) there are There is no pending, or outstanding liability (except for premiums due) under Title IV of ERISA with respect to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which wouldCompany Employee Benefit Plan which, individually or in the aggregate, is having or could be reasonably expected to have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within ; and, without limiting the meaning foregoing, full payment has been made of ERISA) nor has all amounts which the Company or any ERISA Affiliate ever contributed or been was required to contribute have paid as a contribution to any multiemployer plan.
(i) No each Company Employee Benefit Plan as of the last day of the most recent fiscal year of each of the Company Employee Benefit Plans ended prior to the date of this Agreement, respectively, and no Company Employee Benefit Plan has incurred an any "accumulated fund funding deficiency" (as defined in Section 302 of ERISA or and Section 412 of the Code), whether or not waived and (ii) neither waived, as of the last day of the most recent fiscal year of such Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments Employee Benefit Plan ended prior to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability date of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which wouldthis Agreement which, individually or in the aggregate, is having or could be reasonably expected to have a Company Material Adverse Effect.;
(cd) With None of the Company or any Company ERISA Affiliate has at any time (i) had any obligation to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA), or (ii) withdrawn in any complete or partial withdrawal from any "multiemployer plan" (as defined in Section 3(37) of ERISA), with respect to which there exists any unsatisfied obligations;
(e) The value of accrued benefits under each Plan that of the Company Employee Benefit Plans which is subject to Title IV of ERISA, (i) based upon the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared assumptions used for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth funding purposes in the most recent actuarial valuation report prepared by the such Company Employee Benefit Plan's actuary fairly presented the funded status of with respect to each such Plan in all material respectsCompany Employee Benefit Plan, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which woulddid not, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.as
Appears in 1 contract
Samples: Merger Agreement (Hearst Corp)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee of the Company or any of its ERISA Affiliates (the "Plans") is, and Each Plan has been operated and maintained in accordance compliance in all material respects with its terms and in compliance (including the making of governmental filings) with all applicable Laws, including ERISA and the applicable provisions of ERISA, the Code, except for failures that would not, individually Code and other applicable federal or in the aggregate, have a Company Material Adverse Effectstate laws, (ii) each of the Plans Plan that is intended to be "qualified" within the meaning of qualify under Section 401(a) of the Code has been determined by received a favorable determination letter from the Internal Revenue Service and nothing has occurred which could reasonably be expected to be so qualifiedcause the loss of such qualification, (iii) no "reportable event," as such term is defined in Section 4043(c) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to any governmental entity or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" funding deficiency (as defined in Section 412 of the Code or Section 302 of ERISA) or Reportable Event exists with respect to any ERISA Plan, (iv) during the five (5) year period prior to the Closing Date each Issuer Party and each member of its ERISA Controlled Group have materially complied with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan and are not in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan, (v) no Multiemployer Plan is in reorganization (as defined in Section 4241 of ERISA or Section 412 418 of the Code) or is insolvent (as defined in Section 4245 of ERISA), whether or not waived and (iivi) neither no material liability to the Company nor PBGC (other than required premium payments), the Internal Revenue Service (other than user fees), any ERISA Affiliate has incurred Plan or any liability trust established under Title IV of ERISA except for required premium payments exists or is reasonably expected by any Issuer Party or any member of its ERISA Controlled Group to the PBGCbe incurred by such Issuer Party, (vii) neither any Issuer nor any member of its ERISA Controlled Group which payments have been made when due, and no events have occurred which are reasonably likely to give rise is a Subsidiary has any contingent liability with respect to any post-retirement benefit under any “welfare plan” (as defined in Section 3(1) of ERISA), other than liability for continuation coverage under Part 6 of Title I of ERISA and (viii) no Lien under Section 430(k) of the Company Code or an ERISA Affiliate under Title IV Section 303(k) of ERISA or which could reasonably be anticipated requirement to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(cprovide security under Section 401(a)(29) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior Code or Section 307 of ERISA exists or is reasonably expected by Issuer to the date hereof, (ii) be imposed on the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse EffectIssuer Party.
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 1 contract
Samples: Note Purchase Agreement (Nevada Geothermal Power Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent SCHEDULE 3.17 sets forth a correct and the Purchasercomplete list of all pension, (i) each retirement, profit sharing, deferred compensation, severance pay, vacation, bonus or other incentive plan, all other written employee programs, arrangements or agreements, all medical, vision, dental or other health plans, all life insurance plans, and all other employee benefit plans or fringe benefit plans, including "employee benefit planplans" (as that term is defined in Section 3(3) of ERISA, currently providing benefits to any of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee current employees of the Company or any of its ERISA Affiliates subsidiaries and/or their dependents (collectively, the "Benefit Plans").
(b) isTo the Knowledge of Sellers, and has been operated except as disclosed in accordance with its terms and in compliance (including SCHEDULE 3.17, all the making of governmental filings) with all applicable Laws, including ERISA Benefit Plans and the applicable related trusts subject to ERISA comply in all material respects with and have been administered in substantial compliance with, (i) the provisions of the Code, except for failures that would not, individually or in the aggregate, have a Company Material Adverse EffectERISA, (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) all provisions of the Code has been determined by the Internal Revenue Service relating to be so qualifiedqualification and tax exemption under Code Sections 401(a) and 501(a), and (iii) all other Applicable Laws, and Sellers have not received any written notice from any Governmental Authority questioning or challenging such compliance.
(c) To the Knowledge of Sellers, except as disclosed in SCHEDULE 3.17, there are no unresolved claims or disputes under the terms of, or in connection with, the Benefit Plans other than claims for benefits which are payable in the ordinary course, and no litigation has been commenced with respect to any Benefit Plan.
(d) All contributions with respect to a Benefit Plan that is subject to Code Section 412 or ERISA Section 302 have or will be timely made and there is no Lien under Code Section 412(n). No "prohibited transaction" (as defined in ERISA Section 406) or "reportable event," (as such term is defined in Section 4043(cERISA 4043) of ERISA (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived), has occurred with respect to any Plan that is subject to Title IV of ERISA which presents a risk of liability to Benefit Plan. Neither Sellers nor any governmental entity or other person which, individually or Person affiliated with Sellers (in the aggregatemanner described in Code Section 414(b), would have a Company Material Adverse Effect(c), and (ivm) there are no pending, or (o) or Section 4001(a)(14) of ERISA) has contributed to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is been obligated to contribute to a "multiemployer plan" (within the meaning of ERISASection 3(37) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect).
(d) Neither the Company nor any ERISA Affiliate has failed to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse Effect.
(e) Except as provided for in this Agreement or as disclosed in the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due any such employee or officer.
Appears in 1 contract
Samples: LLC Interest Purchase Agreement (Integrity Media Inc)
Employee Benefit Plans; ERISA. (a) Except as previously disclosed to Parent and the Purchaser, (i) each "employee benefit plan" (as defined in Section 3(34.10(a) of the Disclosure Schedule sets forth an accurate and complete list of each material Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other employee benefit, bonus, incentive, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans (whether or not subject to ERISA) maintained or sponsored by the Company or its subsidiaries or any trade or business, whether or not incorporated, that would be deemed a "single employer" within the meaning of Section 4001 of ERISA (an "ERISA Affiliate"), for the benefit of any employee or former employee Benefit Plan. Each of the Company or any of its ERISA Affiliates (the "Plans") is, and Representing Party’s Employee Benefit Plans has been established, operated and administered in accordance with its terms and is in compliance (including with ERISA, the making Code and all other applicable Laws and all contributions required to be made under the terms of governmental filings) with all applicable Laws, including ERISA and the applicable provisions any of the CodeRepresenting Party’s Employee Benefit Plans have been timely made or, except if not yet due, have been properly reflected in the Blue Financial Statements (if the Representing Party is Blue) or the Green Financial Statements (if the Representing Party is Green), except, in each case, for failures that would notinstances of non-compliance that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse EffectEffect with respect to the Representing Party. Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect with respect to the Representing Party, there are no pending, threatened or anticipated claims by or on behalf of any of the Representing Party’s Employee Benefit Plans, by any employee or beneficiary covered thereunder or otherwise involving any of the Representing Party’s Employee Benefit Plans (other than routine claims for benefits).
(b) With respect to each material Employee Benefit Plan, the Representing Party has made available to the other Party, to the extent applicable, accurate and complete copies of (1) the Employee Benefit Plan document, including any material amendments thereto, and all related trust documents, material insurance contracts or other funding vehicles, (ii2) a written description of such Employee Benefit Plan if such plan is not set forth in a written document, (3) the most recently prepared actuarial report, and (4) all material correspondence to or from any Governmental Authority received in the last three years with respect to any Employee Benefit Plan.
(c) Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect with respect to the Representing Party, (i) each of the Representing Party’s Employee Benefit Plans intended to be "“qualified" ” within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Service to be is so qualified, (iii) no "reportable event," as such term qualified and each trust maintained thereunder is defined in exempt from taxation under Section 4043(c501(a) of ERISA the Code, and (for which the 30-day notice requirement to the Pension Benefit Guaranty Corporation ("PBGC"ii) has not been waived), has occurred with respect to any Plan that is Employee Benefit Plan, neither the Representing Party nor any of its Subsidiaries has engaged in a transaction in connection with which the Representing Party or any of its Subsidiaries reasonably could be subject to Title IV of ERISA which presents either a risk of liability civil penalty assessed pursuant to any governmental entity Section 409 or other person which, individually or in the aggregate, would have a Company Material Adverse Effect, and (iv502(i) there are no pending, or to the Company's knowledge threatened, claims (other than routine claims for benefits) by, on behalf of or against, any of the Plans or any trusts related thereto which would, individually or in the aggregate, have a Company Material Adverse Effect. No Plan is a "multiemployer plan" (within the meaning of ERISA) nor has the Company or any ERISA Affiliate ever contributed or been required to contribute to any multiemployer plan.
(i) No Plan has incurred an "accumulated fund deficiency" (as defined in Section 302 of ERISA or a tax imposed pursuant to Section 412 4975 or 4976 of the Code), whether or not waived and (ii) neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA except for required premium payments to the PBGC, which payments have been made when due, and no events have occurred which are reasonably likely to give rise to any liability of the Company or an ERISA Affiliate under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Purchaser by the PBGC, in any such case, which presents a risk of liability which would, individually or in the aggregate, have a Company Material Adverse Effect.
(c) With respect to each Plan that is subject to Title IV of ERISA, (i) the Company has provided to Parent and the Purchaser copies of the most recent actuarial valuation report prepared for such Plan prior to the date hereof, (ii) the assets and liabilities in respect of the accrued benefits as set forth in the most recent actuarial valuation report prepared by the Plan's actuary fairly presented the funded status of such Plan in all material respects, and (iii) since the date of such valuation report there has been no adverse change in the funded status of any such Plan which would, individually or in the aggregate, have a Company Material Adverse Effect.
(d) Neither No event has occurred, and there exists no condition or set of circumstances in connection with any of the Company nor any ERISA Affiliate Representing Party’s Employee Benefit Plans, that has failed had or would reasonably be expected to make any contribution or payment to any Plan which has resulted or could result in the imposition of a lien or the posting of a bond or other security under ERISA or the Code which would have a Company Material Adverse EffectEffect with respect to the Representing Party.
(e) Except as provided for set forth in this Agreement or as disclosed in Section 4.10(e) of the Disclosure LetterSchedule, none of the execution and delivery of this Agreement, the performance by either party of its obligations hereunder or the consummation of the Merger and the other transactions contemplated by this Agreement (either alone or in conjunction with any other event, including any termination of employment on or following the Effective Time) will not (i) entitle any current or former employee employee, officer, director, consultant or officer other individual service provider of the Company Representing Party (collectively with respect to such Representing Party, the “Representing Party Personnel”) to any additional compensation or benefit, (ii) accelerate the time of payment or vesting, or trigger any ERISA Affiliate payment or funding, of any compensation or benefit or trigger any other obligation under any Employee Benefit Plan of the Representing Party, (iii) result in any breach or violation of, or default under, or limit the Representing Party’s right to amend, modify or terminate, any Employee Benefit Plan, (iv) result in any forgiveness or extension of indebtedness under or with respect to any Employee Benefit Plan of the Representing Party, or (v) result in an entitlement of any Representing Party Personnel to severance pay, unemployment compensation or any other paymentpayment or benefit.
(f) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect with respect to the Representing Party, as of the date this representation is made or deemed made, there has been no amendment to, announcement relating to, or (ii) accelerate change in employee participation or coverage under, any Employee Benefit Plan of the time of payment or vesting or Representing Party which would increase the expense of maintaining such plan above the level of the expense incurred therefor for the most recent fiscal year.
(g) No amount or benefit that could be, or has been, received (whether in cash or property or the vesting of compensation due property or the cancellation of indebtedness) by any such employee or officerRepresenting Party Personnel who is a “disqualified individual” within the meaning of Section 280G of the Code could be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) as a result of the consummation of the transactions contemplated by this Agreement.
(h) No Employee Benefit Plan of the Representing Party provides for the gross-up of any Taxes imposed by Section 4999 of the Code that could apply in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
