Employee Benefit Plans; ERISA. (a) With respect to each material 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents: (i) a copy of each Plan that is in writing (including all amendments thereto); (ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof; (iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan; (iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and (v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code. (b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA. (c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made. (d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA. (e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan. (f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan. (g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee or officer of Company or any Company Subsidiary 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. (h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan. (i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect. (j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 4 contracts
Samples: Merger Agreement (Tenet Healthcare Corp), Merger Agreement (Littlejohn Joseph & Levy Fund L P), Merger Agreement (Ornda Healthcorp)
Employee Benefit Plans; ERISA. (a) With respect to each material 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Parent Plans"), currently maintained or contributed to or required to be contributed to by (i) CompanyParent, (ii) any Company Parent Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company Parent ERISA Affiliate"), that together with Company Parent is a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder ("ERISA"), for the benefit of any employee or former employee of CompanyParent, any Company Parent Subsidiary or any Company Parent ERISA Affiliate, Company Parent has heretofore delivered or will after the date hereof make available to ParentCompany, upon request, true and complete copies of each of the following documents:
(i) a copy of each Parent Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Parent Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Parent Plan;
(iv) if the Parent Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Parent Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by CompanyParent, any Company Parent Subsidiary or any Company Parent ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company Parent or any Company Parent Subsidiary or any Company Parent ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Parent Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Parent Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Parent Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Parent Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no No Parent Plan is a "multiemployer pension plan," as defined in section Section 3(37) of ERISA, nor is any Parent Plan a plan described in Section 4063(a) of ERISA.
(e) Each Parent Plan 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 as to its qualification and, to CompanyParent's knowledge, no amendment has been made to any such Parent Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Parent Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Parent Plans that would not, individually or in the aggregate, have a material adverse effect on any such Parent Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Parent Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company Parent or any Company Parent Subsidiary 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.
(h) With respect to each Parent Plan that is funded wholly or partially through an insurance policy, the Company Parent and the Company Parent Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability lia- bility that, individually or in the aggregate, would not have a material adverse effect on the applicable Parent Plan.
(i) There are no pending or, to the CompanyParent's knowledge, threatened claims by or on behalf of any of the Parent Plans, by any employee or beneficiary covered under any such Parent Plan involving any such Parent Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Parent Material Adverse Effect.
(j) Neither Company Parent nor any Company Parent Subsidiary or, to the CompanyParent's knowledge, any Company Parent ERISA Affiliate, any of the ERISA Parent Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company Parent or any Company Parent Subsidiary or, to Parent's knowledge, any Company Parent ERISA Affiliate, any of the ERISA Parent Plans, any such trust trust, or any trustee or administrator thereof, or any party dealing with the ERISA Parent Plans or any such trust is likely to be subject to either a civil liability under Section section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code Code, other than any such liability or tax that would not, individually or in the aggregate, have a Company Parent Material Adverse Effect.
Appears in 4 contracts
Samples: Merger Agreement (Tenet Healthcare Corp), Merger Agreement (Littlejohn Joseph & Levy Fund L P), Merger Agreement (Ornda Healthcorp)
Employee Benefit Plans; ERISA. (a) With respect to each material bonusExcept as disclosed in the Parent SEC Documents, 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, agreement or arrangement, and each other there are no "employee benefit plan, program, agreement plans" (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each 3(3) of the following documents:Employee Retirement Income Security Act of 1974, as amended ("ERISA") nor any other employee benefit or fringe benefit arrangements, practices, contracts, policies or programs other than programs merely involving the regular payment of wages, commissions, or bonuses established, maintained or contributed to by the Parent. Any plans listed in the Parent SEC Documents are hereinafter referred to as the "Parent Employee Benefit Plans."
(ib) a copy of each Plan that is in writing (Any current and prior material documents, including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Parent Employee Benefit Plan for the last two plan years ending prior have been given to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISAits advisors.
(c) No Plan subject to All Parent Employee Benefit Plans are in material compliance with the minimum funding applicable requirements of section 412 of ERISA, the Code and any other applicable state, federal or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely madeforeign law.
(d) Except as set forth in Section 5.17(f) There are no pending, or to the knowledge of the Company Disclosure LetterParent, threatened, claims or lawsuits which have been asserted or instituted against any Parent Employee Benefit Plan, the assets of any of the trusts or funds under the Parent Employee Benefit Plans, the plan sponsor or the plan administrator of any of the Parent Employee Benefit Plans or against any fiduciary of a Parent Employee Benefit Plan with respect to the operation of such plan.
(e) There is no pending, or to the knowledge of the Parent, threatened, investigation or pending or possible enforcement action by the Pension Benefit Guaranty Corporation, the Department of Labor, the Internal Revenue Service or any other government agency with respect to any Parent Employee Benefit Plan.
(f) No actual or, to the knowledge of Parent, contingent liability exists with respect to the funding of any Parent Employee Benefit Plan or for any other expense or obligation of any Parent Employee Benefit Plan, except as disclosed on the financial statements of the Parent or the Parent SEC Documents, and to the knowledge of the Parent, no Plan is a contingent liability exists under ERISA with respect to any "multiemployer pension multi-employer plan," as defined in section Section 3(37) of ERISA, nor is any Plan a plan described in or Section 4063(a4001(a)(3) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (Xedar Corp), Merger Agreement (Xedar Corp), Merger Agreement (Souders Richard Vaughn)
Employee Benefit Plans; ERISA. (a) With respect to The Purchaser Disclosure Schedule contains a true and complete list of each material bonus, deferred compensation, incentive compensationcompensation or equity compensation plan; “welfare” plan, stock purchasefund or program (within the meaning of section 3(1) of ERISA; “pension” plan, stock optionfund or program (within the meaning of section 3(2) of ERISA); each material employment, consulting, termination or severance or termination payagreement; and each other material employee benefit plan, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement planfund, program, agreement or arrangement, and in each other employee benefit plancase, programthat is sponsored, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) the Purchaser or by any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that Affiliate together with Company is the Purchaser would be deemed a "“single employer" ” within the meaning of Section 4001 section 4001(b) of ERISA, or to which the Purchaser or an ERISA Affiliate is party, for the benefit of any employee or former employee of Company, any Company Subsidiary the Purchaser or any Company ERISA AffiliateSubsidiary (“Purchaser Plans”). Section 4.8(a) of the Purchaser Disclosure Schedule also sets forth a list of Foreign Plans of the Purchaser. The Purchaser and its Subsidiaries do not have any liabilities or obligations with respect to Purchaser Plans or Foreign Plans (whether or not accrued, Company contingent or otherwise) that are not reflected in the Purchaser Disclosure Schedule or that could reasonably be expected to have a Material Adverse Effect on the Purchaser.
(b) With respect to each Purchaser Plan, the Purchaser has heretofore delivered or will after the date hereof make made available to Parent, upon request, Company true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all Purchaser Plans and any amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the related trust or other funding agreement (including all amendments thereto) vehicle, any reports or summaries required under ERISA or the Code and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service IRS with respect to each Purchaser Plan intended to qualify under section Section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No The Purchaser Disclosure Schedule sets forth each Purchaser Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waivedunder which, as a result of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
Securities Exchange, either alone or in combination with another event, (iA) entitle any current or former employee or officer of Company the Purchaser or any Company Subsidiary ERISA Affiliate may become entitled to severance pay, unemployment compensation or any other payment, or
except as expressly provided in this Agreement, or (iiB) accelerate the time of payment or vesting, or increase the amount vesting of any compensation due any such employee or officerofficer may become accelerated, or the amount of such compensation may become increased.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(id) There are no pending or, to the Company's Purchaser’s knowledge, threatened threatened, or anticipated claims by or on behalf of any of the PlansPurchaser Plan, by any employee or beneficiary covered under any such Plan Purchaser Plan, or otherwise involving any such Purchaser Plan (other than routine claims for benefits), other than any such claims that would not, which individually or in the aggregate, aggregate could reasonably be expected to have a Company Material Adverse Effect.
(je) Neither Company nor any Company Subsidiary The Purchaser has complied with all obligations imposed on it by applicable law in connection with each Foreign Plan except where such non-compliance would not be reasonably expected to have a Material Adverse Effect on the Purchaser.
(f) There are no pending or, to the Company's Purchaser’s knowledge, scheduled audits of any Company ERISA Affiliate, Purchaser Plan or Foreign Plan by any of the ERISA Plans, any trust created thereunder, Governmental Entity or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary pending or, to Parent's the Purchaser’s knowledge, any Company ERISA Affiliate, any of the ERISA Plans, threatened claims or penalties resulting from any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effectaudit.
Appears in 3 contracts
Samples: Agreement of Securities Exchange and Plan of Reorganization (INTERACTIVE MULTI MEDIA AUCTION Corp), Agreement of Securities Exchange and Plan of Reorganization (INTERACTIVE MULTI MEDIA AUCTION Corp), Agreement of Securities Exchange and Plan of Reorganization (Intelligent Communication Enterprise Corp)
Employee Benefit Plans; ERISA. (a) With respect to Schedule 4.16 hereto contains a true and complete list of each material 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Parent Plans"), currently maintained or contributed to or required to be contributed to by (i) CompanyParent, (ii) any Company Parent Subsidiary or (iii) any trade or business, whether or not incorporated (a an "Company ERISA Affiliate"), that together with Company is Parent would be deemed a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder ("ERISA"), for the benefit of any employee or former employee of CompanyParent, any Company Parent Subsidiary or any Company ERISA Affiliate. Schedule 4.16 hereto identifies each of the Parent Plans that is an "employee benefit plan," as that term is defined in Section 3(3) of ERISA (such plans being hereinafter referred to collectively as the "Parent ERISA Plans").
(b) With respect to each of the Parent Plans, Company Parent has heretofore delivered or will after the date hereof make made available to Parent, upon request, the Company true and complete copies of each of the following documents:
(i) a copy of each the Parent Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Parent Plan for the last two plan years ending prior to the date hereofyears;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, ERISA with respect to such Parent Plan;
(iv) if the Parent Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofthereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Parent Plan intended to qualify under section Section 401 of the Code.
(bc) No liability under Title IV of ERISA has been incurred by CompanyParent, any Company Parent Subsidiary or any Company ERISA Affiliate since the effective date of ERISA that has not been satisfied in full when duefull, and no condition exists that presents a material risk to Company or Parent, any Company Parent Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which willTitle. To the extent this representation applies to Sections 4064, individually 4069 or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under 4204 of Title IV of ERISA, it is made not only with respect to the ERISA Plans but also with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which Parent, a Parent Subsidiary or an ERISA Affiliate made, or was required to make, contributions during the five-year period ending on the Effective Time.
(cd) With respect to each Parent ERISA Plan 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 exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(e) No Parent ERISA Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such each Parent ERISA Plan ended prior to the date hereofEffective Time; and all contributions required to be made with respect thereto (whether pursuant to the terms term of any such Parent ERISA Plan or otherwise) on or prior to the date hereof Effective Time have been timely made.
(df) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no No Parent ERISA Plan is a "multiemployer pension plan," as defined in section Section 3(37) of ERISA, nor is any Parent ERISA Plan a plan described in Section 4063(a) of ERISA.
(eg) Each Parent ERISA Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter is so qualified and the trusts maintained thereunder are exempt from taxation under Section 501(a) of the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such PlanCode.
(fh) Each of the Parent Plans has been operated and administered in all material respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(gi) Except as expressly provided in this AgreementNo amounts payable under the Parent Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code.
(j) No Parent Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees of Parent, any exhibit heretoParent Subsidiary or any ERISA Affiliate beyond their retirement or other termination of service, a Plan other than (i) coverage mandated by applicable law, (ii) death benefits or retirement benefits under any "employee pension plan", as otherwise agreed that term is defined in writing Section 3(2) of ERISA, (iii) deferred compensation benefits accrued as liabilities on the books of Parent, any Parent Subsidiary or any ERISA Affiliate or (iv) benefits the full cost of which is borne by Parent and Company, the current or former employee (or his beneficiary).
(k) The consummation of the transactions contemplated by this Agreement will not:
(i) entitle any current or former employee or officer of Company Parent, any Parent Subsidiary or any Company Subsidiary ERISA Affiliate to severance pay, unemployment compensation or any other payment, orexcept as expressly provided in this Agreement,
(ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer, or
(iii) result in any prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available.
(hl) With respect to each Parent Plan that is funded wholly or partially through an insurance policy, there will be no material liability of Parent, any Parent Subsidiary or any ERISA Affiliate, as of the Company and the Company Subsidiaries do not have any current liability Effective Time, under any such insurance policy or ancillary agreement with respect to such insurance policy in the nature of a retroactive rate adjustment or adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Planclosing.
(im) There are no pending or, to the Company's knowledgepending, threatened or anticipated claims by or on behalf of any of the Parent Plans, by any employee or beneficiary covered under any such Plan Parent Plan, or otherwise involving any such Parent Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(jn) Neither Company nor any Company Subsidiary or, to the Company's knowledgeParent, any Company Parent Subsidiary or any ERISA Affiliate, nor any of the Parent ERISA Plans, nor any trust created thereunder, or nor any trustee or administrator thereof has engaged in a transaction in connection with which Company Parent, any Parent Subsidiary or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the Parent ERISA Plans, any such trust trust, or any trustee or administrator thereof, or any party dealing with the Parent ERISA Plans or any such trust is likely to could be subject to either a material civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a material tax imposed pursuant to section Section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectCode.
Appears in 3 contracts
Samples: Merger Agreement (Acxiom Corp), Merger Agreement (Acxiom Corp), Merger Agreement (May & Speh Inc)
Employee Benefit Plans; ERISA. (a) With Section 4.9(a) of the Company Disclosure Schedule lists, as of the date of this Agreement, each material employee benefit plan (as hereinafter defined) (i) that is currently maintained, contributed (or required to be contributed) to, or sponsored by the Company or any of its Subsidiaries, or (ii) to which the Company or any of its Subsidiaries is a party, or (iii) with respect to each which the Company or any of its Subsidiaries has any material liability, including any material contingent liability, for the payment or delivery of any premiums, compensation or benefits (collectively, the “Benefit Plans”). For purposes of the preceding sentence, an “employee benefit plan” is any of the following that benefits or is intended to benefit any current or former employee or director (whether or not an employee) of, or consultant or other service provider (whether or not an employee) with respect to the Company or an ERISA Affiliate (as defined in Section 4.9(b)), or the beneficiaries of any of them: (A) a “plan” described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”); (B) a stock bonus, stock option, stock purchase, restricted stock, restricted stock unit, stock appreciation right, or other equity-based plan, policy, program, agreement or arrangement; or (C) an incentive, bonus, deferred compensation, incentive compensationwelfare, stock purchaseretiree medical or life insurance, stock optionretirement, severance or termination paysupplemental retirement, hospitalization termination, salary continuation, severance, change in control, and any material fringe benefit or other medicalmaterial benefit plan, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement planpolicy, program, agreement or arrangement, whether written or unwritten. With respect to each Benefit Plan, the Company has delivered to Parent a true and complete copy of each other employee benefit planof the following, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by together with all amendments: (i) Companyall documents embodying the Benefit Plan (or, where a Benefit Plan has not been reduced to writing, a summary of all material Plan terms), (ii) in the case of any Company Subsidiary funded Benefit Plan, the trust agreement or similar instrument, (iii) any trade for each Benefit Plan subject to the requirement that annual reports be filed on a Form 5500, the two most recently filed annual reports, with schedules, financial statements and auditor’s opinion attached, (iv) in the case of each Benefit Plan intended to be qualified under Section 401(a) of the Code, the most recent IRS determination or businessopinion letter applicable to the Benefit Plan, whether or not incorporated (a "Company ERISA Affiliate"v) all related custodial agreements, insurance policies (including fiduciary liability insurance covering the fiduciaries of the Benefit Plan), administrative services and similar agreements, and investment advisory or investment management agreements, if any, and (vi) the most recent summary plan description, summaries of material modifications or similar summary and any employee handbook referencing the Benefit Plan.
(b) None of the Company or any of its Subsidiaries or any other person (including an entity) that together with the Company or any of its Subsidiaries is or at any relevant time was treated as a "single employer" employer under Section 414(b), (c), (m) or (o) of the Code (each, together with the Company and any of its Subsidiaries, an “ERISA Affiliate”) has ever contributed or been required to contribute to, or has ever sponsored, maintained or participated in, (i) a pension plan (within the meaning of Section 4001 3(2) of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section Section 412 of the Code or section 302 Title IV of ERISA ERISA, (ii) a multiemployer plan (within the meaning of Section 3(37) or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 4001(a)(3) of ERISA and section 412 of the CodeERISA), whether or not waived, as (iii) a single employer pension plan (within the meaning of the last day Section 4001(a)(15) of the most recent fiscal year ERISA) for which an ERISA Affiliate would reasonably be expected to incur liability under Section 4063 or 4064 of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) ERISA. Except as set forth described in Section 5.17(f4.9(b) of the Company Disclosure LetterSchedule, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not, by themselves or together with any other event, cause or result in the payment, acceleration or vesting of any payment, right or benefit under any Benefit Plan.
(c) Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code is the subject of a favorable determination or opinion letter from the Internal Revenue Service (the “IRS”). No such determination or opinion letter has been revoked, and, to the Company’s knowledge, revocation has not been threatened. To the Company’s knowledge, no such Benefit Plan has been amended or operated since the date of its most recent determination or opinion letter in any respect, and no act or omission has occurred, that would adversely affect its qualification.
(d) Each Benefit Plan has been maintained and administered at all times in accordance with its material terms. Each Benefit Plan, including any associated trust or fund, has been established and administered in material compliance with the applicable provisions of ERISA, the Code and other applicable Law (including, where applicable, non-U.S. Law), and, to the knowledge of the Company, nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any ERISA Affiliate to any liability or penalty under Section 502 of ERISA or to any tax under Chapter 43 of the Code. All filings and reports with respect to each Benefit Plan required to have been submitted to the IRS, the United States Department of Labor, or any other Governmental Entity have been duly and timely submitted.
(e) No Benefit Plan provides health or life insurance benefits following retirement or other termination of employment, and neither the Company nor any ERISA Affiliate has any obligation to provide any such benefits following retirement or other termination of employment, in each case except for benefit continuation coverage to the extent required under Part 6 of Subtitle B of Title I of ERISA.
(f) With respect to each Benefit Plan, no administrative investigation, inquiry, audit or other proceeding by the IRS, U.S. Department of Labor or other Governmental Entity, and no other lawsuit, claim, or other controversy, other than claims for benefits in the ordinary course and proceedings with respect to qualified domestic relations orders, is pending or, to the knowledge of the Company, threatened.
(g) With respect to each Benefit Plan, all contributions (including salary reduction contributions), premiums and other payments (i) entitle any current or former employee or officer of Company or any Company Subsidiary to severance paythe extent due, unemployment compensation or any other paymenthave been timely made, or
and (ii) accelerate to the time extent not yet due, have been appropriately accrued on the books of payment or vestingthe Company or, or increase the amount if applicable, any of compensation due any such employee or officerits Subsidiaries.
(h) With respect Each Benefit Plan subject to Section 409A of the Code (“Section 409A”) has been operated in good faith compliance with Section 409A. No Benefit Plan, which is subject to the requirements of Section 409A, violates such requirements. All Company Options granted by the Company after October 3, 2004 or which vest or vested (in whole or in part) after December 31, 2004, have (or, if already terminated, had) an exercise price that was not less than the fair market value of the underlying stock as of the date such Company Option was granted. The Company is not a party to, nor is otherwise obligated under, any contract, agreement, plan or arrangement that provides for the gross-up of Tax imposed by Section 409A(a)(1)(B) of the Code.
(i) Except for the Benefit Plans listed in Section 4.9(i) of the Company Disclosure Schedule, no Benefit Plan is subject to the Laws of a jurisdiction other than the United States of America, whether or not United States Law also applies. For purposes of the preceding sentence, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Xxxxxxxx Islands and the Virgin Islands shall be considered jurisdictions other than the United States.
(j) Except for the Benefit Plans listed in Section 4.9(j) of the Company Disclosure Schedule, each Benefit Plan and its related documentation or agreement, summary plan description, or other written communication distributed generally to employees by its terms expressly and adequately reserves the right to amend and terminate such Benefit Plan, and each Plan that is funded wholly or partially through an insurance policy, may be terminated without material liability to the Company or any ERISA Affiliate, except for vested benefits accrued through the date of termination and the administrative and professional costs incurred in such transaction. Except as listed in Section 4.9(j) of the Company Disclosure Schedule, no Benefit Plan subject to ERISA includes in its assets in any securities issued by the Company or any ERISA Affiliate.
(k) Except as listed in Section 4.9(i) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries: (i) has made any payments, is obligated to make any payments, or is a party to any agreement that could obligate it to make any payments that will be treated as an “excess parachute payment” under Section 280G of the Code or in the imposition of an excise Tax under Code Section 4999 (or any corresponding provisions of state, local or foreign Tax Law); or (ii) is a party to, nor is otherwise obligated under, any contract, agreement, plan or arrangement that provides for the gross-up of the excise Tax imposed by Code Section 4999.
(l) Neither the Company nor the Company Subsidiaries do not have has made any current liability under payments that have, or has been or is a party to any such insurance policy in the nature of a retroactive rate adjustment agreement, contract, arrangement or loss sharing arrangement arising wholly plan that have, resulted or partially out of events occurring prior to the closing other than any such liability thatwill result, individually separately or in the aggregate, would not have a material adverse effect on in the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf payment of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that compensation which would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under the deduction limit imposed by Code Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect162(m).
Appears in 3 contracts
Samples: Merger Agreement (COV Delaware Corp), Merger Agreement (Ev3 Inc.), Merger Agreement (Covidien PLC)
Employee Benefit Plans; ERISA. (a) With Except as disclosed in the Parent SEC Reports, at the date hereof, Parent and its subsidiaries do not maintain or contribute to or have any obligation or liability to or with respect to each any material 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, agreement or arrangement, and each other employee benefit planplans, programprograms, agreement arrangements or practices, including employee benefit plans within the meaning set forth in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (including but not limited to employment agreements) or arrangement (the "PlansERISA"), currently maintained or contributed to or required to be contributed to by other similar material arrangements for the provision of benefits (i) Company, (ii) excluding any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employerMulti-employer Plan" within the meaning of Section 4001 3(37) of ERISA, for ERISA or a "Multiple Employer Plan" within the benefit meaning of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each Section 413(c) of the following documents:
Code) (i) a copy such plans, programs, arrangements or practices of each Plan that is in writing (including Parent and its subsidiaries being referred to as the "Parent Plans"). The Parent Disclosure Schedule lists all amendments thereto);
(ii) a copy Multi-employer Plans to which any of the annual report and actuarial report, if required under ERISA, them makes contributions or has any obligation or liability to make material contributions. Neither Parent nor any of its subsidiaries maintains or has any material liability with respect to each any Multiple Employer Plan. Neither Parent nor any of its subsidiaries has any obligation to create or contribute to any additional such Plan for 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 last two plan years ending prior to the date hereof;
(iii) a copy terms of the most recent Summary Plan DescriptionParent Plans, together under existing collective bargaining agreements or to comply with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Codeapplicable law.
(b) No liability 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 could result in penalties, taxes or liabilities which would reasonably be expected to have a Parent Material Adverse Effect, (ii) except for premiums due, there is no outstanding material liability, whether measured alone or in the aggregate, under Title IV of ERISA with respect to any of the Parent Plans, (iii) neither the Pension Benefit Guaranty Corporation nor any plan administrator has been incurred by Company, instituted proceedings to terminate any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk of the Parent Plans subject to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA other than in a "standard termination" described in Section 4041(b) of ERISA.
, (civ) No Plan subject to the minimum funding requirements of section 412 none of the Code or section 302 of ERISA or any trust established thereunder Parent Plans has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the Parent Plans ended prior to the date hereof; and of this Agreement, (v) the current present value of all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) projected benefit obligations under each of the Company Disclosure LetterParent Plans which is subject to Title IV of ERISA did not, no Plan as of its latest valuation date, exceed the then current value of the assets of such plan allocable to such benefit liabilities by more than the amount, if any, disclosed in the Parent SEC Reports as of December 31, 1997, based upon reasonable actuarial assumptions currently utilized for such Parent Plan, (vi) each of the Parent 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 to have a Parent Material Adverse Effect, (vii) each of the Parent Plans which is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter from been determined by the Internal Revenue Service to be so qualified and such determination has not been 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, (viii) with respect to Multi-employer Plans, neither Parent nor any of its subsidiaries has made or suffered a "complete withdrawal" or a "partial withdrawal," as to its qualification such terms are respectively defined in Sections 4203, 4204 and 4205 of ERISA and, to Company's knowledgethe knowledge of Parent and its subsidiaries, no amendment event has been made occurred or is expected to occur which presents a material risk of a complete or partial withdrawal under such Sections 4203, 4204 and 4205, (ix) to the 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, (x) Parent and its subsidiaries have no current material liability under Title IV of ERISA, and Parent and its subsidiaries do not reasonably anticipate that any such Plan since the date liability will be asserted against Parent or any of such letter that is likely to result in the disqualification of such Plan.
its subsidiaries, and (fxi) Each of the Plans has been operated and administered in all respects in accordance with applicable lawsno act, including, but not limited to, ERISA and the Code, except for any failure to so operate omission or administer such Plans that would not, transaction (individually or in the aggregate, have ) has occurred with respect to any Parent Plan that has resulted or could result in any material liability (direct or indirect) of Parent or any subsidiary under Sections 409 or 502(c)(i) or (l) of ERISA or Chapter 43 of Subtitle (A) of the Code. None of the Parent Controlled Group Plans has an "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code) or is required to provide security to a material adverse effect on any such PlanParent Plan pursuant to Section 401(a)(29) of the Code.
(gc) Except as expressly provided in this Agreement, any exhibit hereto, The Parent SEC Reports contain a Plan true and complete summary or as list of or otherwise agreed in writing by Parent describe all material employment contracts and Company, the consummation other employee benefit arrangements with "change of the transactions contemplated by this Agreement will not
(i) entitle any current control" or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (American Disposal Services Inc), Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Allied Waste Industries Inc)
Employee Benefit Plans; ERISA. (a) With Except as disclosed in the Company SEC Documents, since the audited financial statements for the year ended December 31, 1998 until the date hereof, there has not been any adoption or amendment (or an agreement to adopt or amend) in any material respect to each material by the Company or any of its subsidiaries of any employment or consulting agreement, collective bargaining agreement or any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, severance phantom stock, stock appreciation right or other stock-based incentive, retirement, vacation, severance, change in control or termination pay, hospitalization disability, death benefit, hospitalization, medical or other medical, life insurance or any other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement agreement, arrangement or arrangementunderstanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any Subsidiary (collectively, the "Benefit Plans"). Except as disclosed in the Company SEC Documents, or in Section 3.9(a) of the Company Disclosure Schedule, there exist, as of the date hereof, no employment, consulting, severance, termination or indemnification agreements, arrangements or understandings between the Company or any of its Subsidiaries, and each other any current or former employee, consultant, officer or director of the Company.
(b) Section 3.9(b) of the Company Disclosure Schedule contains a list and brief description of all "employee pension benefit planplans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, program, agreement as amended (including but not limited "ERISA")) (sometimes referred to employment agreements) or arrangement (the herein as "Pension Plans"), currently maintained or "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Benefit Plans sponsored, maintained, contributed to or required to be contributed to to, by (i) Companythe Company or any of its Subsidiaries or any person or entity that, together with the Company and its Subsidiaries, is treated as a single employer under Section 414(b), (iic), (m) any Company Subsidiary or (iiio) any trade of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each such other person or businessentity, whether or not incorporated (a "Company ERISA AffiliateCommonly Controlled Entity"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, ) for the benefit of any employee current or former employee of Companyemployees, any Company Subsidiary officers or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each directors of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any of its Subsidiaries. The Company Subsidiary or any Company ERISA Affiliate has made available to Parent true, complete and correct copies of incurring a liability under such Title which will(1) each Benefit Plan (or, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms case of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.unwritten Benefit
Appears in 2 contracts
Samples: Merger Agreement (Sage Group PLC), Merger Agreement (Best Software Inc)
Employee Benefit Plans; ERISA. (a) With respect to each material 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 retirement, thrift, savings, employee stock ownership, stock bonus, restricted stock, welfare and fringe benefit plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement arrangement, other than such as are immaterial (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is considered a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder ("ERISA"), or Section 414(b) or (c) of the Code for the benefit of any employee or former employee employee, consultant or former consultant, or director or former director of either Company, any Company Subsidiary or any Company ERISA Affiliate.
(b) Except as set forth on Schedule 8.10 hereto, neither Company nor any Company Subsidiary has any commitment to create any additional material Plan or to modify or change any existing Plan in any material respect. If applicable, Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, true and complete copies of each of the following documentsof:
(i) a copy of each existing Plan that is in writing (including documents(including all amendments thereto);
(ii) a copy of the annual Form 5500, actuarial report and actuarial report, if required under ERISA, with respect to each such Plan financial statement for the last two most recent plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each any Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust instruments, insurance contracts or any other third party funding vehicle, a copy of the trust or other funding agreement (including vehicle(including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and;
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service ("IRS") with respect to each Plan intended to qualify under section Section 401 of the Code; and
(vi) any Form 5310 or Form 5330 filed with the IRS.
(bc) No liability under Title IV of ERISA has been or is expected to be incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and . Company has no condition exists that presents a material risk reason to Company or expect to incur any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such ERISA arising in connection with the termination of, or complete withdrawal from, any Plan previously covered by Title IV of ERISA which will, individually or in the aggregate, would have a Company Material Adverse Effect, Effect or give rise to a lien under Title IV of ERISA. No notice of a "reportable event", within the meaning of Section 4043 of ERISA for which the 30-day reporting requirement has not been waived, has been required to be filed for any Plan within the 12- month period ending on the date hereof, and no such notice will be required to be filed as a result of the transactions contemplated by this Agreement. The Pension Benefit Guaranty Corporation ("PBGC") has not instituted proceedings to terminate any Plan and, to Company's knowledge, no condition exists that presents a material risk that such proceedings will be instituted. To the knowledge of Company, there is no pending investigation or enforcement action by the PBGC, the Department of Labor (the "DOL")or IRS or any other governmental agency with respect to any Plan. Under each Plan to the extent applicable, as of the date of the most recent actuarial valuation performed prior to the date of this Agreement, the actuarially determined present value of all "benefit liabilities", within the meaning of Section 4001(a)(16) of ERISA (as determined on the basis of the actuarial assumptions contained in such actuarial valuation of such Plan), did not exceed the then current value of the assets of such Plan and since such date there has been neither an adverse change in the financial condition of such Plan nor any amendment or other change to such Plan that would increase the amount of benefits thereunder which reasonably would be expected to change such result.
(cd) No Plan subject to the minimum funding requirements of section Section 412 of the Code or section Section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all . All contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made. None of Company, any Company Subsidiary or any Company ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(de) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no No Plan is a "multiemployer pension plan," as defined in section Section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA. None of Company, any Company Subsidiary or any Company ERISA Affiliate has contributed, or has been obligated to contribute to a multiemployer plan under Subtitle E of ERISA at any time since September 26, 1980.
(ef) Each Plan which is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA and is intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter including a determination that the related trust under such Plan is exempt from tax under Section 501(a) of the Code from the Internal Revenue Service IRS as to its qualification for "TRA" (as defined in Rev. Proc 93-39) and, to Company's knowledge, there are no amendment has been made to any such Plan since the date of such letter that is circumstances likely to result in the disqualification of such Plan.
(fg) Each of the Plans has been operated and administered in all material respects in accordance with applicable laws, including, but not limited to, ERISA and the Code. There is no material pending or, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and knowledge of Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary to severance paythreatened legal action, unemployment compensation or any other payment, or
(ii) accelerate the time of payment or vestingsuit, or increase claim relating to the amount of compensation due any such employee or officerPlans.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability thatNo Plan, individually or collectively, constitutes a "defined benefit plan" as defined in the aggregate, would not have a material adverse effect on the applicable PlanSection 3(35) of ERISA.
(i) There are no pending or, to the To Company's knowledge, threatened claims by or on behalf none of any of the PlansCompany, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, or any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or Company, any Company Subsidiary or, to Parent's knowledgeSubsidiary, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section Section 4975 or 4976 of the Code other than any such liability or tax that which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary has any obligations to provide retiree health and life insurance or other retiree death benefits under any Plan, other than benefits mandated by Section 4980B of the Code, and each Plan may be amended or terminated without incurring liability thereunder. There has been no communication to employees by Company or any Company Subsidiary that would reasonably be expected to promise or guarantee such employees retiree health or life insurance or other retiree death benefits on a permanent basis.
(k) All Plans covering foreign employees comply in all material respects with applicable local law. Company and any Company Subsidiary have no material unfunded liabilities with respect to any Plan which covers foreign employees.
(l) Except as provided in Schedule 8.10 hereto, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), reasonably be expected to (A) entitle any current or former employee, consultant or director to any payment (including severance pay or similar compensation) or any increase in compensation except in connection with Shares and options held by them, (B) result in the vesting or acceleration of any benefits under any Plan or (C) result in any material increase in benefits payable under any Plan.
(m) Neither Company nor any Company Subsidiary maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(n) As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), none of the Parent, Sub, Company or the Surviving Corporation, or any of their respective subsidiaries will be obligated to make a payment that would be characterized as an "excess parachute payment" to an individual who is a "disqualified individual" (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
Appears in 2 contracts
Samples: Merger Agreement (Vencor Inc), Merger Agreement (Transitional Hospitals Corp)
Employee Benefit Plans; ERISA. (a) With Except as Previously Disclosed, neither SRH nor any of its Subsidiaries maintain or contribute to, or have any obligation to contribute to, or have any liability, direct or indirect, contingent or otherwise (including, without limitation, a liability arising out of an indemnification, guarantee, hold harmless or similar agreement) with respect to each to, any material bonusemployment, consulting, severance pay, termination pay, retirement, deferred compensation, incentive retention or change in control plan, program, arrangement, agreement or commitment, or an executive compensation, stock purchaseincentive bonus or other bonus, pension, stock option, severance restricted stock or termination payequity-based, hospitalization or other profit sharing, savings, life, health, disability, accident, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pensionvacation, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement arrangement, agreement, fund or commitment, including any "employee benefit plan" as defined in Section 3(3) of ERISA providing benefits to any current or former employee, consultant or director of SRH or any of its Subsidiaries or any current or former employee, consultant or director of any entity with respect to which SRH or its Subsidiaries is a successor (including but not limited to employment agreements) or arrangement (collectively the "SRH Benefit Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true . True and complete copies of each of the following documents:
(i) SRH Benefit Plan, including, but not limited to, any trust instruments and/or insurance contracts, if any, forming a copy of each Plan that is in writing (including part thereof, all amendments thereto);
(ii) a copy of the annual report thereto and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from letters issued by the Internal Revenue Service with respect Service, all government and regulatory approvals received from any foreign Regulatory Agency, the most recent summary plan descriptions (including any material modifications) and the most recent audited financial reports for any funded SRH Benefit Plan have been supplied or made available to each Parent. Except as Previously Disclosed: (i) neither SRH nor any of its Subsidiaries has any plan or commitment, whether legally binding or not, to create any additional SRH Benefit Plan intended or modify or change any existing SRH Benefit Plan that would materially increase the benefits provided to qualify under section 401 any employee or former employee, consultant or director of the CodeSRH or any Subsidiary thereof; and (ii) since December 31, 1998 there has been no material change, amendment, modification to, or adoption of, any SRH Benefit Plan.
(b) No liability With respect to each SRH Benefit Plan: (i) if intended to qualify under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the CodeSection 401(a), whether 401(k) or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section 401(a403(a) of the Code such plan has received a favorable determination letter from the Internal Revenue Service as Service, or if intended to its qualification andqualify under any law or regulation of any foreign jurisdiction or Regulatory Agency such plan so qualifies, to Company's knowledge, no amendment has been made to and SRH is not aware of any such Plan since the date of such letter that is circumstances likely to result in the disqualification revocation of such Plan.
favorable determination or such qualification; (fii) Each of the Plans it has been operated and administered in all material respects in accordance compliance with its terms and all applicable lawslaws and regulations (including but not limited to ERISA, the Code and any relevant foreign laws and regulations); (iii) there are no material pending or, to the Knowledge of SRH, threatened claims against, by or on behalf of any SRH Benefit Plans (other than routine claims for benefits); (iv) to the Knowledge of SRH, no material breaches of fiduciary duty have occurred; (v) no non-exempt prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code has occurred which would subject SRH or any Subsidiary to material liability; (vi) no material Lien imposed under the Code, ERISA or any foreign law exists; and (vii) all contributions, premiums and expenses to or in respect of such SRH Benefit Plan have been timely paid in full or, to the extent not yet due, have been adequately accrued on SRH's consolidated financial statements.
(c) Neither SRH nor any of its Subsidiaries has incurred or reasonably expects to incur, either directly or indirectly (including as a result of an indemnification obligation), any material liability under Title I or IV of ERISA or the penalty, excise tax or joint and several liability provisions of the Code or any foreign law or regulation relating to employee benefit plans, and to the Knowledge of SRH, no event, transaction or condition has occurred, exists or is expected to occur which could result in any such material liability to SRH, any of its Subsidiaries or, after the Closing, to Parent.
(d) SRH and each of its Subsidiaries has complied with, and each such SRH Benefit Plan conforms in operation and form to, all applicable legal requirements, domestic or foreign, including, but not limited to, ERISA and the Code, except in all material respects.
(e) With respect to each "employee pension benefit plan" (within the meaning of Section 3(2) of ERISA) as to which either SRH or any Subsidiary may incur any liability under Section 302 or Title IV of ERISA or Section 412 of the Code:
(i) no such plan is a "multiemployer plan" (within the meaning of Section 3(37) of ERISA) or a "multiple employer plan" (within the meaning of Section 413(c) of the Code);
(ii) no such plan has been terminated so as to result, directly or indirectly, in any material liability, contingent or otherwise, of either SRH or any Subsidiary under Title IV of ERISA;
(iii) no complete or partial withdrawal from such plan has been made by SRH or any Subsidiary, or by any other Person, so as to result in a material liability to SRH or any Subsidiary, whether such liability is contingent or otherwise;
(iv) no proceeding has been initiated by any Person (including the PBGC to terminate any such plan or to appoint a trustee for any failure such plan;
(v) to so operate the Knowledge of SRH, no condition or administer event currently exists or currently is expected to occur that could result, directly or indirectly, in any material liability of SRH or any Subsidiary under Title IV of ERISA, whether to the PBGC or otherwise, on account of the termination of any such Plans plan;
(vi) if any such plan were to be terminated as of the Closing Date or if any Person were to withdraw from such plan, neither SRH nor any Subsidiary would incur, directly or indirectly, any material liability under Title IV of ERISA;
(vii) no "reportable event" (as defined in ERISA) for which the 30-day reporting requirement has not been waived has occurred with respect to any such plan, nor has any notice of such event or similar notice to any foreign Regulatory Agency been required to be filed for any SRH Benefit Plan within the past 12 months nor will any such notice be required to be filed as a result of the transactions contemplated by this Agreement;
(viii) no such plan which is subject to Section 302 of ERISA or Section 412 of the Code has incurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA and section 412 of the Code, respectively), whether or not waived, and neither SRH nor any of its Subsidiaries has provided, or is required to provide, security to any SRH Benefit Plan pursuant to Section 401(a)(29) of the Code; and
(ix) the transactions contemplated hereby will not result in any event described in section 4062(e) of ERISA.
(f) Except as Previously Disclosed, with respect to each SRH Benefit Plan that is a "welfare plan" (as defined in Section 3(1) of ERISA), neither SRH nor any Subsidiary has any obligations to provide health, life insurance, or death benefits with respect to current or former employees, consultants or directors of SRH or any of its Subsidiaries beyond their termination of employment or service, other than as required under Section 4980B of the Code, and each such SRH Benefit Plan may be amended or terminated at any time without incurring liability thereunder. Except as Previously Disclosed, there has been no communication to any employee, consultant or director of SRH or any Subsidiary that would not, individually reasonably be expected to promise or in the aggregate, have a material adverse effect on guarantee any such Planretiree health or life insurance or other retiree death benefits on a permanent basis.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and CompanyPreviously Disclosed, the consummation of the transactions contemplated by this Agreement hereby, either alone or in combination with another event, (whether contingent or otherwise) will not
not (i) entitle any current or former employee employee, consultant or officer director of Company SRH or any Company Subsidiary to severance pay, unemployment compensation or any other group of such employees, consultants or directors to any payment, or
(ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any such employee employee, consultant or officerdirector (iii) accelerate the vesting or funding of any compensation, stock incentive or other benefit; (iv) result in any "parachute payment" under Section 280G of the Code (whether or not such payment is considered to be reasonable compensation for services rendered); or (v) cause any compensation to fail to be deductible under Section 162(m), or any other provision of the Code or any similar foreign law or regulation.
(h) With respect to Under each SRH Benefit Plan which is a single-employer plan and any foreign plan that is funded wholly or partially through an insurance policya defined benefit plan, as of the Company and last day of the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring most recent plan year ended prior to the closing other than date hereof, the actuarially determined present value of all "benefit liabilities", within the meaning of Section 4001(a)(16) of ERISA or, with respect to any foreign plan, as determined under any equivalent law or practice (in each case as determined on the basis of the actuarial assumptions contained in SRH Benefit Plan's most recent actuarial valuation), did not exceed the then current value of the assets of such liability thatSRH Benefit Plan, individually or and there has been no material adverse change in the aggregate, would not have a material adverse effect on financial condition of such SRH Benefit Plan (with respect to either assets or benefits) since the applicable Planlast day of the most recent plan year.
(i) There are no pending orSRH has Previously Disclosed a true, correct and complete schedule of all extensions of credit made to the Company's knowledge, threatened claims by or on behalf executive officers and directors of SRH and its Subsidiaries and their related interests that are required to be reported to any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effectapplicable Regulatory Authority.
(j) Neither Company Except as Previously Disclosed, no SRH Benefit Plan, or SRH or any Subsidiary, is under audit or is the subject of an audit or investigation by the IRS, the U.S. Department of Labor, the PBGC or any other federal or state governmental agency, nor is any such audit or investigation pending or threatened.
(k) Except as Previously Disclosed, neither SRH nor any Company Subsidiary ormaintains any plan, program or arrangement or is a party to any contract that provides any benefits or provides for payments to any Person in, based on or measured by the Company's knowledgevalue of, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunderequity security of, or any trustee or administrator thereof has engaged in a transaction in connection with which Company interest in, SRH or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectSubsidiary.
Appears in 2 contracts
Samples: Transaction Agreement and Plan of Merger (Republic New York Corp), Transaction Agreement and Plan of Merger (HSBC Holdings PLC)
Employee Benefit Plans; ERISA. (a) With respect to Section 4.12(a) of the Company Disclosure Schedule contains a true and complete list of each material employment (other than at-will offer letters with no severance or compensation term guarantee), bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance stock appreciation right or other stock-based incentive, severance, change-in-control, or termination pay, hospitalization or other medical, disability, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, arrangement and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans")arrangement, currently sponsored, maintained or contributed to or required to be contributed to by (i) Company, (ii) the Company or any Company Subsidiary Subsidiary, or (iii) by any trade or business, whether or not incorporated (a an "Company ERISA Affiliate"), that together with the Company is or any Company Subsidiary would be deemed a "single employer" within under Section 414(b), (c), (m) or (o) of the meaning of Section 4001 of ERISACode, for the benefit of any employee current or former employee or director of the Company, or any Company Subsidiary or any ERISA Affiliate (the "Plans"). Section 4.12(a) of the Company Disclosure Schedule identifies each Plan that is an "employee welfare benefit plan" or "employee pension benefit plan" as such terms are defined in Sections 3(1) and 3(2) of ERISA Affiliate(such plans being hereinafter referred to collectively as the "ERISA Plans").
(b) With respect to each of the Plans, the Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, Parent true and complete copies of each of the following documents, as applicable:
(i) a copy of each the Plan that is in writing (including all amendments thereto)) for each written material Plan or a written description of any material Plan that is not otherwise in writing;
(ii) a copy of the annual report and or IRS Form 5500 Series, if required under ERISA, with respect to each ERISA Plan for the last two (2) Plan years ending prior to the date of this Agreement for which such a report was filed;
(iii) a copy of the actuarial report, if required under ERISA, with respect to each such ERISA Plan for the last two plan (2) Plan years ending prior to the date hereofof this Agreement;
(iiiiv) a copy of the most recent Summary Plan Description, together with each all Summary of Material ModificationsModifications issued with respect to such Summary Plan Description, if required under ERISA, with respect to such each ERISA Plan, and all other material employee communications relating to each ERISA Plan;
(ivv) if the Plan is funded through a trust or any other third party funding vehiclevehicle (or if a rabbi trust or a similar arrangement has been established in connection with a Plan), a copy of the trust or trust, other funding agreement vehicle, or arrangement (including all amendments thereto) and the latest financial statements thereof, if any;
(vi) all contracts relating to the Plans with respect to which the last reporting period ended immediately prior to the date hereofCompany, any Company Subsidiary or any ERISA Affiliate may have any material liability; and
(vvii) the most recent determination letter received prior to the date hereof from the Internal Revenue Service IRS with respect to each Plan that is intended to qualify be qualified under section 401 Section 401(a) of the Code.
(bc) No liability under Title IV None of the Company, any Company Subsidiary nor any ERISA Affiliate has been incurred by any formal plan or binding commitment to create any additional Plan or modify or change any existing Plan that would affect any current or former employee or director of the Company, any Company Subsidiary or any Company ERISA Affiliate Affiliate, except as required by Applicable Law or to conform such Plan to the requirements of any Applicable Law. There are no understandings, agreements or undertakings, written or oral, or omissions that has not been satisfied in full when due, and no condition exists that presents a material risk to would prevent or impair any Plan (including any Plan covering retirees or other former employees) from being amended or terminated by the Company or any the applicable Company Subsidiary (or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwisesuccessor thereto) on or prior to at any time after the date hereof have been timely madeEffective Time.
(d) Except as set forth in Section 5.17(f) None of the Company, any Company Disclosure LetterSubsidiary nor any ERISA Affiliate has ever maintained, no contributed to or been obligated to contribute to any employee pension benefit plan that is, or ever was, subject to Title IV of ERISA. No Plan is a "multiemployer multi-employer pension plan," as such term is defined in section Section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended None of the Company, any Company Subsidiary, any ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, nor to the Company's Knowledge, any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which the Company, any Company Subsidiary or any ERISA Affiliate could be "qualified" within the meaning of section 401(asubject to any material liability for either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975, 4976 or 4980B of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such PlanCode.
(f) Each of the Plans has been operated and administered in all material respects in accordance with applicable lawsApplicable Laws, including, including but not limited to, to ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Other than routine claims for benefits, there are no suits, claims, actions, audits, investigations, IRS or DOL voluntary compliance programs or other Proceedings pending or, to the Knowledge of the Company, threatened against or otherwise involving any Plan.
(h) The Company has received a determination letter from the IRS stating that each of the ERISA Plans that is intended to be "qualified" within the meaning of Section 401(a) of the Code is so qualified, and the Company is aware of no event that has occurred that would affect such qualified status. Any fund established under an ERISA Plan that is intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements.
(i) Except as expressly provided set forth in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and CompanySection 4.12(i) of the Company Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will not
, either alone or in combination with any other event, (i) entitle any current or former employee employee, officer, director or officer consultant of Company or the Company, any Company Subsidiary or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or
similar termination payment or (ii) accelerate the time of payment or vesting, or increase the amount of compensation of, or otherwise enhance, any benefit due to any such employee employee, officer, director or officerconsultant.
(hj) Except as set forth in Section 4.12(j) of the Company Disclosure Schedule, no amounts payable under any of the Plans or any other contract, agreement or arrangement with respect to which the Company or any Company Subsidiary may have any liability could fail to be deductible for federal income tax purposes by virtue of Section 162(m) or Section 280G of the Code.
(k) No Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees of the Company, any Company Subsidiary or any ERISA Affiliate after retirement or other termination of service (other than (i) coverage mandated by Applicable Laws, (ii) death benefits or retirement benefits under any employee pension benefit plan or (iii) benefits, the full direct cost of which are borne by the current or former employee (or beneficiary thereof)).
(l) Section 4.12(l) of the Company Disclosure Schedule lists all outstanding Options as of the date hereof, showing for each Option: (i) the total number of shares subject to such Option, (ii) the number of vested shares subject to such Option at December 31, 2003, in the case of Options granted on or prior to December 31, 2003, and at the date hereof, in the case of Options granted after December 31, 2003, in each case not giving effect to any acceleration of Options pursuant to Section 7.7 hereof, (iii) the date of expiration of such Option, (iv) the exercise price per share of such Option and (v) the Option Plan under which the Option was granted.
(m) With respect to each Foreign Plan: (i) all employer and employee contributions to each Foreign Plan that is required by Applicable Law or by the terms of such Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded wholly or partially through an insurance policyForeign Plan, the Company liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and the Company Subsidiaries do not have any current liability under any former participants in such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior plan according to the closing other actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Plan, and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than any such liability that, individually or benefit obligations; and (iii) each Foreign Plan required to be registered has been registered and has been maintained in the aggregate, would not have a material adverse effect on the good standing with applicable Planregulatory authorities.
(in) There are no pending orAs of the date hereof, to the Knowledge of the Company's knowledge, threatened claims by or on behalf of any other than as provided under the terms of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any none of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary orhas made any representation or commitment to, to Parent's knowledgeor entered into any formal or informal understanding with, any employee of the Company ERISA Affiliateor any Company Subsidiary with respect to compensation, benefits, or terms of employment to be provided by Parent, the Surviving Corporation or any of the ERISA Plans, Surviving Corporation's Subsidiaries at or subsequent to the Effective Time.
(o) None of assets of any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 Plan that are plan assets for purposes of Title I of ERISA are employer securities or employer real property.
(p) Section 502(i4.12(p) of ERISA, or a tax imposed pursuant to section 4975 or 4976 the Company Disclosure Schedule sets forth (i) the aggregate amount of payroll deductions as of the Code other than any such liability or tax date of this Agreement that would not, individually or have been allocated for purchases of common stock of the Company with respect to each offering period underway on the date of this Agreement and (ii) the fair market value of a share of common stock of the Company on the Offering Date (as defined in the aggregate, have a Company Material Adverse EffectESPP) with respect to each offering period underway on the date of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Therasense Inc), Merger Agreement (Therasense Inc)
Employee Benefit Plans; ERISA. (a) With Except as set forth in Section 3.15(a) of the Highland Schedule and as of the date hereof, neither Highland nor any Subsidiary is a party to or has or could have any liability, contingent liability or obligation with respect to each material 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, agreement or arrangement, and each other (i) any "employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), (ii) any profit sharing, pension, deferred compensation, bonus, stock option, stock purchase, severance, retainer, consulting, health, welfare or incentive plan or agreement, including any post-employment benefits, whether pursuant to contract, arrangement, custom or informal understanding, which does not constitute an employee benefit plan, (iii) any material plan or policy providing for "fringe benefits" to its employees, including but not limited to vacation, paid holidays, personal leave, employee discount, educational benefit or similar programs, or (iv) any employment agreement (individually a"Benefit Plan", and collectively the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company "Benefit Plans").
(b) Highland has heretofore delivered or will after the date hereof make available to Parent, upon request, true included correct and complete copies of (A) the Benefit Plans and all contracts relating thereto or to the funding thereof, (B) any employment, consulting or termination agreements with respect to current, or former employees or directors of Highland or any Subsidiary to the extent any liability or obligation remains thereunder, (C) the most recent Internal Revenue Service determination letter relating to each of the following documents:
(i) a copy of each Benefit Plan that is an employee pension benefit plan, as defined in writing Section 3(2) of ERISA (including all amendments thereto);the "Employee Pension Benefit Plans") and that is intended to be qualified under Section 401(a) of the Code, (D) to the extent required to be filed, the two most recent Annual Reports (Form 5500 Series) and accompanying schedules of each Benefit Plan, as filed with the Internal Revenue Service, (E) any summary plan descriptions relating to any Benefit Plan, (F) if applicable, the most recent audited financial statements of each Employee Pension Benefit Plan and (G) the two most recent actuarial valuation reports for each Employee Pension Benefit Plan for which such reports were prepared in Section 3.15 (b) of the Highland Schedule. Highland has also included an accurate description of any Benefit Plan that is not in written form in Section 3.15(b) of the Highland Schedule.
(iic) a copy of the annual report Highland and actuarial report, if required under ERISAeach Subsidiary has received, with respect to each such Plan for of the last two plan years ending prior Employee Pension Benefit Plans which is intended to qualify under Section 401(a) of the Code, a favorable determination letter issued by the Internal Revenue Service that covers all amendments to the date hereof;plan for which the remedial amendment period (within the meaning of Section 401(b) of the Code and applicable regulations) has expired, and no events, actions or failures to act, have occurred which would adversely affect the qualification of any such Employee Pension Benefit Plan or result in a tax under Section 511 of the Code. Neither Highland, any Subsidiary nor any entity which is part of a group which includes Highland or any Subsidiary and which is treated as a single employer under Section 414 of the Code (a "Controlled Group Member") contributes to a "multiemployer plan", as defined in Section 4001(a)(3) of ERISA, or has had a complete or partial withdrawal from any such multiemployer plan, the liability for which remains unsatisfied. Each of the Benefit Plans has been administered in all material respects in accordance with its terms, the requirements of ERISA and any other applicable law.
(iiid) a copy All reports and information required to be filed with the United States Department of the most recent Summary Plan DescriptionLabor, together with each Summary of Material ModificationsInternal Revenue Service or Pension Benefit Guaranty Corporation ("PBGC"), or distributed to plan participants and their beneficiaries, which if required under ERISA, not timely filed or distributed would result in any liability to Highland or any Subsidiary with respect to such any Benefit Plan;
(iv) if the , have been timely filed or distributed. With respect to each Benefit Plan is funded through a trust or any other third party funding vehiclefor which an Annual Report had been filed, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements no change has occurred with respect to the last reporting period ended immediately prior to the date hereof; and
(v) matters covered by the most recent determination letter received prior to Annual Report since the date hereof from the Internal Revenue Service with respect thereof which would result in any liability to each Plan intended to qualify under section 401 of the CodeHighland or any Subsidiary.
(be) None of the Employee Pension Benefit Plans (or any pension plan maintained by a Controlled Group Member) which is subject to Title IV of ERISA have (A) completely or partially terminated or (B) been the subject of a "reportable event" as defined in Section 4043 of ERISA, if any such event would result in any liability to Highland or any Subsidiary.
(f) No proceedings by the PBGC to terminate pursuant to Subtitle C of Title IV of ERISA any Employee Pension Benefit Plan of Highland (or any pension plan maintained by a Controlled Group Member) have been instituted or threatened and no event has occurred or condition exists which might constitute grounds under Section 4042 of ERISA for the termination of or the appointment of a trustee to administer any such plan. No material liability under Title IV of ERISA has been incurred by CompanyHighland or any Subsidiary with respect to an Employee Pension Benefit Plan (or any pension plan maintained by a Controlled Group Member) and none of Highland, any Company Subsidiary or any Company ERISA Affiliate Controlled Group Member has engaged in (or is a successor to an entity that has not been satisfied in full when due, and no condition exists that presents engaged in) a material risk to Company transaction for which Highland or any Company Subsidiary would have liability under Section 4069 or 4212(c) of ERISA. Except as set forth in Section 3.15(f) of the Highland Schedule, none of the Employee Pension Benefit Plans (or any Company ERISA Affiliate pension plan of incurring a liability under such Title Controlled Group Member) which will, individually or in the aggregate, have is a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder defined benefit pension plan has incurred any "accumulated funding deficiency" (whether or not waived), as that term is defined in section 302 of ERISA and section Section 412 of the Code), whether or not waived, as and the fair market value of the last day assets held to fund each such plan equals or exceeds the actuarial present value (based on the actuarial assumptions used by the actuary of the most recent fiscal year plan for purposes of determining the contributions for such Plan ended prior to the date hereof; plan) of all accrued benefits, both vested and all contributions required to be made with respect thereto (whether pursuant to the terms of any nonvested, under such Plan or otherwise) on or prior to the date hereof have been timely madeplan.
(dg) Except as set forth in Section 5.17(f3.15(g) of the Company Disclosure LetterHighland Schedule, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
all contributions for all periods ending prior to the Closing Date (e) Each Plan intended to be "qualified" within including periods from the meaning of section 401(a) first day of the Code has received a favorable determination letter from current plan year to the Internal Revenue Service Closing Date) will be made prior to the Closing Date by Highland or its Subsidiary, as to its qualification andapplicable, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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 officerpast practice.
(h) With There have been no "prohibited transactions" (as such term is defined in Section 4975 of the Code or in Part 4 of Subtitle B of Title I of ERISA) with respect to each any Benefit Plan that is funded wholly as to which Highland or partially through an insurance policy, the Company and the Company Subsidiaries do not any Subsidiary may have any current liability liability. No penalty or tax for which Highland or any of its Subsidiaries may be liable has been imposed under any such insurance policy in Section 502(i) of ERISA or Section 4975 of the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable PlanCode.
(i) There are no pending orpending, or to the Company's knowledgebest knowledge of Highland threatened, threatened claims by or on behalf of any of the PlansBenefit Plan, or by any employee or beneficiary covered under any such Benefit Plan, which allege a breach of fiduciary duties or violations of other applicable state or federal law which may result in liability on the part of Highland or any Subsidiary or result in any decrease in the assets of any Benefit Plan involving under ERISA or any other law, nor, to Highland's best knowledge, is there any basis for any such Plan (other than routine claims for benefits), other than claim. Highland will notify Xxxxxxx in writing of any such threatened or pending claims that would not, individually or in arising after the aggregate, have a Company Material Adverse Effectdate hereof but before the Effective Time.
(j) Neither Company Except as set forth in Section 3.15(j) of the Highland Schedule, neither Highland nor any Company Subsidiary orhas any obligation to provide, to the Company's knowledgeor liability or contingent liability with respect to, any Company ERISA Affiliate, post- employment benefits for any of the ERISA Plans, current or former employee under any trust created thereunder, or any trustee or administrator thereof has engaged "welfare benefit plan" as defined in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i3(l) of ERISA, other than for group health plan continuation coverage required under Part 6 of Title I of ERISA
(k) All expenses and liabilities relating to all of the Benefit Plans described in Section 3.15(k) of the Highland Schedule have been, and will on the Closing Date, be fully and properly accrued on Highland's books and records, to the extent required by generally accepted accounting principles.
(l) Except as set forth in Section 3.15(l) of the Highland Schedule, none of the assets of any Benefit Plan are invested in employer securities or a tax imposed pursuant employer real property.
(m) There has been no act or omission that would impair the ability of Highland or any Subsidiary (or any successor thereto) to section 4975 amend or 4976 terminate unilaterally any Benefit Plan.
(n) There have been no acts or omissions by Highland or any Subsidiary which have given rise to or may give rise to fines, penalties, taxes or related charges under Section 502 of ERISA or Chapters 43, 47, 68 and 100 of the Code other than for which Highland or any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectSubsidiary may be liable.
Appears in 2 contracts
Samples: Merger Agreement (Highland Bancorp Inc), Merger Agreement (Highland Bancorp Inc)
Employee Benefit Plans; ERISA. (a) With respect to each All material written "employee benefit plans", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other pension, profit sharing, retirement, supplemental retirement, stock, stock option, change of control, basic and supplemental accidental death and dismemberment, basic and supplemental life and health insurance, post-retirement medical or life, welfare, dental, vision, savings, bonus, deferred compensation, incentive compensation, stock purchase, stock optionbusiness travel and accident, severance or termination pay, hospitalization salary continuation, short-term and long-term disability, termination or other medicalcompensation plan, life arrangement or agreement or other insurance, supplemental unemployment benefits, profit-sharing, pension, material employee fringe benefit plans maintained by the Company or retirement plan, program, agreement any of the Company Subsidiaries or arrangement, and each any other employee benefit plan, program, agreement employer (including but not limited to employment agreements) or arrangement (the an "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate")) that is, that or at any relevant time was, together with the Company is or any of the Company Subsidiaries, treated as a "single employer" within under Section 414(b), 414(c), 414(m) or 414(o) of the meaning Code, or to which the Company or any of Section 4001 of ERISA, the Company Subsidiaries or any ERISA Affiliate contributes or is obligated to contribute thereunder for the benefit of any employee current or former employee employees of Company, any the Company Subsidiary or any of the Company Subsidiaries (the "Employee Benefit Plans") other than any Employee Benefit Plan which is a multiemployer plan, as defined in Section 3(37) of ERISA Affiliate("Multiemployer Plan"), are, in all material respects, maintained in accordance with their terms and with all applicable provisions of the Code and ERISA (including rules and regulations thereunder) and other applicable federal and state laws and regulations, including the timely filing of all material reports, returns and similar documents with the appropriate government agency or distribution to Employee Benefit Plan participants, as applicable, except where the failure to so maintain them would not be reasonably likely to result in a Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true Material Adverse Effect. True and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) such Employee Benefit Plan, and where applicable, a copy of the annual report most recent determination letter received from the Internal Revenue Service (the "IRS"), and actuarial report, if required under ERISAthe most recent IRS Form 5500 filed, with respect to each such Plan for the last two plan years ending prior Employee Benefit Plan, have been furnished to the date hereof;Buyer.
(iiib) a copy Except as indicated in Section 3.12(b) of the most recent Summary Plan DescriptionDisclosure Schedule, together with each Summary of Material Modifications, if required the Employee Benefit Plans (other than the Multiemployer Plans) intended to qualify under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy Section 401 of the trust or other funding agreement (including Code are, and at all amendments thereto) times since their inception have been, so qualified and the latest financial statements trusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the Code, and nothing has occurred with respect to the last reporting period ended immediately prior operation of such plans which would be reasonably likely to result in the date hereof; and
(vloss of such qualification or exemption or the imposition of any material liability, penalty or tax under ERISA or the Code. Except as set forth in Section 3.12(b) of the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to Disclosure Schedule, each such Employee Benefit Plan intended to qualify under section Section 401 of the CodeCode has received a determination letter from the IRS to the effect that each such plan is qualified and all related trusts are exempt from federal income taxes on a determination letter request is pending with the IRS to such effect, and no determination letter with respect to any such plan has been revoked nor, is there any reason for such revocation, nor has any such plan been amended, or failed to be amended, since the date of its most recent determination letter in any respect which would adversely affect its qualification.
(bc) No liability All contributions (including all employer contributions and employee salary reduction contributions) and payments required to have been made under Title IV any of ERISA has the Employee Benefit Plans or by law (without regard to any waivers granted under Section 412 of the Code) or in connection therewith have been incurred made by Companythe due date thereof (including any valid extension, any except where the failure to make such contribution would not be reasonably likely to result in a Company Subsidiary or any Company ERISA Affiliate that has not been satisfied Material Adverse Effect). Except as indicated in full when dueSection 3.12(c) of the Disclosure Schedule, and no condition exists that presents a material risk to asset of the Company or any Company Subsidiary or is subject to any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(cSections 401(a)(29) No Plan subject to the minimum funding requirements of section 412 or 412(n) of the Code or section 302 Section 4068 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms arising out of any such Plan or otherwiseaction filed under Section 4301(b) on or prior to the date hereof have been timely madeof ERISA.
(d) Except as set forth in Section 5.17(f3.12(d) of the Disclosure Schedule, neither the Employee Benefit Plans, the Company, the Company Disclosure LetterSubsidiaries, no Plan is any ERISA Affiliate, nor any employee of the foregoing, nor any trusts created thereunder, has engaged in a "multiemployer pension plan,prohibited transaction" as defined in section 3(37) within the meaning of Section 4975 of the Code or Section 406 of ERISA, nor is has any Plan a plan described in Section 4063(a) such person breached any duty imposed by Title I of ERISA, with respect to any Employee Benefit Plan.
(e) Each Plan intended to be "qualified" within Neither the meaning of section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation Company Subsidiaries nor any ERISA Affiliate has incurred any material liability to the Pension Benefit Guaranty Corporation (the "PBGC") with respect to any Employee Benefit Plan subject to Title IV of ERISA, other than for the payment of premiums, all of which have been paid when due. No Employee Benefit Plan has applied for or received a waiver of the transactions contemplated minimum funding standards imposed by this Agreement will not
(i) entitle any current or former employee or officer Section 412 of the Code. The Company or any Company Subsidiary has furnished to severance pay, unemployment compensation or any other payment, or
(ii) accelerate Buyer the time of payment or vesting, or increase the amount of compensation due any such employee or officer.
(h) With most recent actuarial report with respect to each Employee Benefit Plan that is funded wholly or partially through an insurance policya defined benefit pension plan, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy as defined in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefitsSection 3(35), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Us Industries Inc /De), Securities Purchase Agreement (Us Industries Inc /De)
Employee Benefit Plans; ERISA. (a) With respect to each material 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 retirement, thrift, savings, employee stock ownership, stock bonus, restricted stock, welfare and fringe benefit plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement arrangement, other than such as are immaterial (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is considered a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder ("ERISA"), or Section 414(b) or (c) of the Code for the benefit of any employee or former employee employee, consultant or former consultant, or director or former director of either Company, any Company Subsidiary or any Company ERISA Affiliate.
(b) Except as set forth on Schedule 8.10 hereto, neither Company nor any Company Subsidiary has any commitment to create any additional material Plan or to modify or change any existing Plan in any material respect. If applicable, Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, true and complete copies of each of the following documentsof:
(i) a copy of each existing Plan that is in writing documents (including all amendments thereto);
(ii) a copy of the annual Form 5500, actuarial report and actuarial report, if required under ERISA, with respect to each such Plan financial statement for the last two most recent plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each any Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust instruments, insurance contracts or any other third party funding vehicle, a copy of the trust or other funding agreement (including vehicle(including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and;
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service ("IRS") with respect to each Plan intended to qualify under section Section 401 of the Code; and
(vi) any Form 5310 or Form 5330 filed with the IRS.
(bc) No liability under Title IV of ERISA has been or is expected to be incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and . Company has no condition exists that presents a material risk reason to Company or expect to incur any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such ERISA arising in connection with the termination of, or complete withdrawal from, any Plan previously covered by Title IV of ERISA which will, individually or in the aggregate, would have a Company Material Adverse Effect, Effect or give rise to a lien under Title IV of ERISA.
(c) . No Plan subject to the minimum funding requirements notice of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISAreportable event", nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section 401(a) Section 4043 of ERISA for which the 30-day reporting requirement has not been waived, has been required to be filed for any Plan within the 12-month period ending on the date hereof, and no such notice will be required to be filed as a result of the Code transactions contemplated by this Agreement. The Pension Benefit Guaranty Corporation ("PBGC") has received a favorable determination letter from the Internal Revenue Service as not instituted proceedings to its qualification terminate any Plan and, to Company's knowledge, no amendment has been made condition exists that presents a material risk that such proceedings will be instituted. To the knowledge of Company, there is no pending investigation or enforcement action by the PBGC, the Department of Labor (the "DOL") or IRS or any other governmental agency with respect to any such Plan. Under each Plan since to the extent applicable, as of the date of the most recent actuarial valuation performed prior to the date of this Agreement, the actuarially determined present value of all "benefit liabilities", within the meaning of Section 4001(a)(16) of ERISA (as determined on the basis of the actuarial assumptions contained in such letter that is likely to result in the disqualification actuarial valuation of such Plan.
(f) Each ), did not exceed the then current value of the Plans assets of such Plan and since such date there has been operated and administered neither an adverse change in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for financial condition of such Plan nor any failure amendment or other change to so operate or administer such Plans Plan that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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 benefits thereunder which reasonably would be expected to change such employee or officerresult.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Transitional Hospitals Corp), Merger Agreement (Transitional Hospitals Corp)
Employee Benefit Plans; ERISA. (a) With respect to each material 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, agreement or arrangement, Schedule 3.9 contains an accurate and each other complete list of all "employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employerplans," within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ("ERISA Plans"), and any other bonus, profit sharing, pension, severance, savings, deferred compensation, fringe benefit, insurance, welfare, health, post-retirement benefit, life, stock option, disability, accident, sick pay, vacation, individual employment, consulting, incentive, change in control, or other plan, agreement, policy, trust fund, or arrangement (whether written or unwritten, insured or self-insured) ("Other Plan"):
(i) established, maintained, sponsored, or contributed to (or with respect to which any obligation to contribute has been undertaken) within the last six (6) years for any ERISA Plan that is or was subject to Title IV of ERISA or is or was intended to be qualified under Section 401(a) of the Code (a "Qualified Plan") and since August 1996 for any Other Plan and any ERISA Plan which is not a Qualified Plan by Seal, the Seal Subsidiaries or any entity that would be deemed a "single employer" with Seal under Section 414(b), (c), (m), or (o) of the Code or Section 4001 of ERISA, for the benefit ERISA (an "ERISA Affiliate") on behalf of any employee employee, director, or former employee consultant of CompanySeal or a Seal Subsidiary (whether current, any Company Subsidiary former, or retired) or their beneficiaries; or
(ii) with respect to which Seal, the Seal Subsidiaries or any Company ERISA AffiliateAffiliate has or has within the last six (6) years for any Qualified Plan and since August 1996 for any Other Plan and any ERISA Plan which is not a Qualified Plan had any obligation on behalf of any such employee, Company has heretofore delivered director, consultant or will after beneficiary of Seal or a Seal Subsidiary (each a "Scheduled Seal Plan" and, collectively, the date hereof make available to Parent, upon request, true "Scheduled Seal Plans"). True and complete copies of each of the Scheduled Seal Plans which is intended to qualify under Section 401(a) of the Code and each other Scheduled Seal Plan which Seal, the Seal Subsidiaries or any ERISA Affiliate has or could reasonably be expected to have a current or future actual or potential liability, and the material documents relating thereto (including, without limitation, any summary plan description, annual reports, and communications from the Internal Revenue Service ("IRS") or any other government entity) have been provided to Oakridge. None of the Scheduled Seal Plans (nor, to Seal's knowledge, any Other Plan or ERISA Plan which is not a Qualified Plan with respect to the period commencing six (6) years ago and ending August, 1996) is: (A) a "multi-employer plan," as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code; (B) otherwise subject to Title IV of ERISA; or (C) subject to Section 412 of the Code. With respect to each employee pension benefit plan subject to Title IV of ERISA or Section 412 of the Code (other than the Seal Plans) maintained or contributed to by an ERISA Affiliate, (A) there is no actual or contingent material liability of Seal or any Seal Subsidiary under Title IV of ERISA or Section 412 of the Code to such Plan, the Pension Benefit Guaranty Corporation or other governmental authority, and (B) the assets of Seal or any Seal Subsidiary have not been subject to a lien under ERISA or the Code.
(b) Except where failures to comply with each of the following documents:representations has not or could not reasonably be expected to result, individually and in the aggregate, in a Seal Material Adverse Effect, with respect to each of the Scheduled Seal Plans (and, to Seal's knowledge, with respect to the period commencing six (6) years ago and ending August, 1996, each Other Plan and each ERISA Plan which is not a Qualified Plan):
(i) each such Plan intended to qualify under Section 401(a) of the Code is qualified and has received a copy determination letter under Revenue Procedure 93-39 or subsequent IRS guidance to the effect that such Plan is qualified under Section 401 of each Plan the Code and any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of the Code and nothing has occurred or is expected to occur through the date of the Closing that is in writing (including all amendments thereto)caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) a copy of the annual report and actuarial reportall payments required by any such Plan, if required under ERISAany collective bargaining agreement or other agreement, or by law (including, without limitation, all contributions, insurance premiums, or inter-company charges) with respect to each such Plan for all periods through the last two plan years ending date of the Closing shall have been made prior to the date Closing or accrued on the Seal Financial Statements in accordance with GAAP (as defined in Section 3.11 hereof);
(iii) a copy no claim, lawsuit, arbitration or other action has been threatened, asserted, instituted, or anticipated against such Plans, any trustee or fiduciaries thereof, Seal, any Seal Subsidiary, any ERISA Affiliate, any director, officer, or employee thereof, or any of the most recent Summary assets of any trust of such Plans;
(iv) each such Plan Descriptionhas been maintained and administered at all times in compliance with its terms and all applicable laws, together with each Summary rules and regulations, including, without limitation, ERISA and the Code;
(v) no "prohibited transaction," within the meaning of Material Modifications, if required under Section 4975 of the Code and Section 406 of ERISA, has occurred or is expected to occur with respect to such Plan;
(ivvi) if the no such Plan is funded through a trust or is expected to be under audit or investigation by the IRS, Department of Labor, or any other third party funding vehiclegovernmental authority and no such completed audit, a copy if any, has resulted in the imposition of the trust any tax or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofpenalty; and
(vvii) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each such Plan intended to qualify under section 401 that is funded mostly or partially through an insurance policy, none of Seal, the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary Seal Subsidiaries or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregatenature of retroactive rate adjustment, have a Company Material Adverse Effect, loss sharing arrangement or give rise to a lien under Title IV other actual or contingent liability arising wholly or partially out of ERISAevents occurring on or before the Closing.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the The consummation of the transactions contemplated by this Agreement will not
(i) entitle not give rise to any current or former employee or officer of Company or any Company Subsidiary to material liability, including, without limitation, liability for severance pay, unemployment compensation compensation, termination pay, or any other paymentwithdrawal liability, or
(ii) or accelerate the time of payment or vesting, vesting or increase the amount of compensation or benefits due to any employee, director, shareholder, or beneficiary of Seal or any Seal Subsidiary (whether current, former, or retired) or their beneficiaries solely by reason of such employee or officer.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability transactions. No amounts payable under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
Scheduled Seal Plan (i) There are no pending or, to the CompanySeal's knowledge, threatened claims under any Other Plan or ERISA Plan which is not a Qualified Plan with respect to the period commencing six (6) years ago and ending August 1996) will fail to be deductible for federal income tax purposes by virtue of Section 280G or on behalf 162(m) of the Code. None of Seal, any Seal Subsidiary or any ERISA Affiliate maintains, contributes to, or in any way provides for any benefits of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan kind whatsoever (other than routine claims for benefits)under Section 498B of the Code, other than the Federal Social Security Act, or a plan qualified under Section 401(a) of the Code) to any such claims that would notcurrent or future retiree or terminee. None of Seal, individually any Seal Subsidiary or in the aggregate, have a Company Material Adverse Effect.
any ERISA Affiliate has any unfunded liabilities pursuant to any Scheduled Seal Plan (j) Neither Company nor any Company Subsidiary ornor, to the CompanySeal's knowledge, under any Company Other Plan or ERISA AffiliatePlan which is not a Qualified Plan, any with respect to the period commencing six (6) years ago and ending August 1996) that is not intended to be qualified under Section 401(a) of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectCode.
Appears in 2 contracts
Samples: Agreement and Plan of Exchange (Pearce M Lee), Agreement and Plan of Exchange (Seal Holdings Corp)
Employee Benefit Plans; ERISA. (a) With respect Except as set forth in the Parent SEC Reports, at the date hereof, Parent and its subsidiaries do not maintain or contribute to each any material 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, agreement or arrangement, and each other employee benefit planplans, programprograms, agreement arrangements or practices (including but not limited such plans, programs, arrangements or practices of Parent and its subsidiaries being referred to employment agreements) or arrangement (as the "Parent Plans"), currently maintained or contributed to or required to be contributed to by including employee benefit plans within the meaning set forth in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA AffiliateERISA"), that together with Company is a or other similar material arrangements for the provision of benefits (excluding any "single employerMulti-employer Plan" within the meaning of Section 4001 3(37) of ERISA, for ERISA or a "Multiple Employer Plan" within the benefit meaning of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(iSection 413(c) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code). Schedule 4.13 attached hereto lists all Multi-employer Plans and Multiple ------------- Employer Plans which any of Parent or its subsidiaries maintains or to which any of them makes material contributions or which cover a material number of employees. Neither Parent nor its subsidiaries has any obligation to create any additional such plan or to amend any such plan so as to increase benefits thereunder, except as required under the terms of the Parent Plans, under existing collective bargaining agreements or to comply with applicable law.
(b) No liability 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 could result in penalties, taxes or liabilities which, singly or in the aggregate, could have a Parent Material Adverse Effect, (ii) except for premiums due, there is no outstanding material liability, whether measured alone or in the aggregate, under Title IV of ERISA with respect to any of the Parent Plans, (iii) neither the Pension Benefit Guaranty Corporation nor any plan administrator has been incurred by Company, instituted proceedings to terminate any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk of the Parent Plans subject to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA other than in a "standard termination" described in Section 4041(b) of ERISA.
, (civ) No Plan subject to the minimum funding requirements of section 412 none of the Code or section 302 of ERISA or any trust established thereunder Parent Plans has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the Parent Plans ended prior to the date hereof; and of this Agreement, (v) the current present value of all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) projected benefit obligations under each of the Company Disclosure LetterParent Plans which is subject to Title IV of ERISA did not, no Plan as of its latest valuation date, exceed the then current value of the assets of such plan allocable to such benefit liabilities by more than the amount, if any, disclosed in the Parent SEC Reports as of May 31, 1997, based upon reasonable actuarial assumptions currently utilized for such Parent Plan, (vi) 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, (vii) each of the Parent Plans which is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received been determined by the IRS to be so qualified and such determination has not been modified, revoked or limited by failure to satisfy any condition thereof or by a favorable determination letter from subsequent amendment thereto or a failure to amend, except that it may be necessary to make additional amendments retroactively to maintain the Internal Revenue Service "qualified" status of such Parent Plans, and the period for making any such necessary retroactive amendments has not expired, (viii) with respect to Multi- employer Plans, neither Parent nor any of its subsidiaries has made or suffered a "complete withdrawal" or a "partial withdrawal," as to its qualification such terms are defined in Sections 4203, 4204 and 4205 of ERISA, respectively, and, to Company's knowledgethe knowledge of Parent and its subsidiaries, no amendment event has been made occurred or is expected to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have occur which presents a material adverse effect on any such Plan.
risk of a complete withdrawal or partial withdrawal under said Sections 4203, 4204 and 4205, (gix) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by to the knowledge of Parent and Companyits subsidiaries, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There there are no pending or, to the Company's knowledgematerial pending, threatened or anticipated claims by or on behalf of involving any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (Parent Plans other than routine claims for benefits), other than benefits in the ordinary course and (x) Parent and its subsidiaries have no current material liability for plan termination or complete withdrawal or partial withdrawal under Title IV of ERISA based on any such claims plan to which any entity that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection be deemed one employer with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability Parent and its subsidiaries under Section 409 4001 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 414 of the Code other than contributed during the period of time covered by the applicable statute of limitations (a "Parent Controlled Group Plan"), and Parent and its subsidiaries do not reasonably anticipate that any such liability will be asserted against Parent or tax that would not, individually any of its subsidiaries. None of the Parent Controlled Group Plans has an "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code).
(c) The Parent SEC Reports contain a true and complete summary or in the aggregate, have a Company Material Adverse Effectlist of or otherwise describe all material employment contracts and other employee benefit arrangements with "change of control" or similar provisions and all severance agreements with executive officers.
Appears in 2 contracts
Samples: Merger Agreement (Corporate Express Inc), Merger Agreement (Corporate Express Inc)
Employee Benefit Plans; ERISA. (a) With respect to Section 3.26(a) of the Mercer Disclosure Schedule sets forth a complete and accurate list of each material bonus, deferred compensation, incentive compensation, stock purchase, stock option, equity-based award, severance or termination pay, hospitalization or other medical, accident, disability, life or other insurance, supplemental unemployment benefits, fringe and other welfare benefit, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans")arrangement, currently that is sponsored, maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary Mercer or (iii) the Mercer Subsidiaries or by any trade or business, whether or not incorporated (a "Company ERISA Affiliate")incorporated, that together with Company is Mercer, would or would have been at any date of determination occurring within the preceding five (5) years, deemed a "“single employer" ” within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or considered as being members of a controlled group of corporations, under common control, or members of an affiliated service group within the meaning of Subsections 414(b), (c) or (m) of the Code or Section 4001(a)(14) of ERISA, in each case for the benefit of any employee current or former employee employee, director or independent contractor of Company, any Company Subsidiary Mercer or any Company ERISA Affiliateof the Mercer Subsidiaries (each a “Plan” and collectively the “Mercer Plans”).
(b) With respect to each Plan listed in Section 3.26(a) of the Mercer Disclosure Schedule, Company to the extent applicable, Mercer has heretofore delivered or will after the date hereof make made available to Parent, upon request, Buyer true and complete copies of each of the following documents:
(i) a copy of each written Plan that is in writing and any amendment thereto (including all amendments thereto)which has not yet been incorporated into the Plan document) and a written summary of each unwritten Plan;
(ii) a copy of the most recent annual report on Form 5500 and actuarial reportany schedules or attachments thereto, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if summary plan description required under ERISA, ERISA with respect to such Planthereto;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; andthereof;
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section Section 401 of the Code.; and
(bvi) No liability under Title IV of ERISA has been incurred by Companyall correspondence with any Governmental Body with respect to any investigation, any Company Subsidiary audit, dispute or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISAassessment.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section qualified under Section 401(a) of the Code Code, and the trust (if any) forming a part thereof, has received a favorable determination letter from the Internal Revenue Service as to its qualification andunder the Code and to the effect that each such trust is exempt from taxation under Section 501(a) of the Code, and nothing has occurred with respect to Company's knowledge, no amendment has been made to any such Plan since the date of such determination letter that is likely to result has, individually or in the disqualification aggregate, had a Material Adverse Effect.
(d) At no time during the six (6) year period prior to the date of such Planthis Agreement has either Mercer, or any ERISA Affiliate maintained, had an obligation to contribute to or had any liability under, any plan or trust that is subject to Title IV or Section 302 of ERISA or Section 412 of the Code or a multiemployer plan, within the meaning of Section 3(37) of ERISA, and no condition exists that presents a material risk to Mercer or any ERISA Affiliate of incurring a liability under Title IV of ERISA.
(e) No Plan or any trust established thereunder is maintained for the benefit of employees outside of the United States or is otherwise subject to the laws of any jurisdiction other than the United States or a political subdivision thereof.
(f) Each Neither Mercer, nor any ERISA Affiliate, has engaged in a transaction in connection with which Mercer or the ERISA Affiliate could be subject to penalties under the excise tax or joint and several liability provisions of the Plans Code relating to employee benefit plans that would, individually, or when taken together with any amounts arising as a result of noncompliance with any of the other paragraphs of this Section 3.26, have, individually or in the aggregate, a Material Adverse Effect.
(g) Each Plan has been operated and administered in all respects in accordance with applicable lawsits terms and Applicable Law, including, but not limited to, including ERISA and the Code, except for where such noncompliance, individually, or when taken together with any failure to so operate or administer such Plans that amounts arising as a result of noncompliance with any of the other paragraphs of this Section 3.26, would notnot have, individually or in the aggregate, have a material adverse effect on any such PlanMaterial Adverse Effect.
(gh) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the The consummation of the transactions contemplated by this Agreement Contemplated Transactions will not
, either alone or together with any other event, (i) entitle any current or former employee employee, director or officer of Company Mercer or any Company Subsidiary of the Mercer Subsidiaries to severance pay, unemployment compensation or any other payment, or
except as expressly provided in this Agreement, or (ii) accelerate the time of payment or vestingvesting or trigger any payment or funding (whether through a grantor trust or otherwise) of compensation or benefits, or increase the amount of compensation due any such employee employee, director or officer.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledgeKnowledge of Mercer, threatened or anticipated actions, suits or claims by or on behalf of any of the PlansPlan, by any employee or beneficiary covered under any such Plan Plan, or otherwise involving any such Plan (other than routine claims for benefits)) that would, individually, or when taken together with any amounts arising as a result of noncompliance with any of the other than any such claims that would notparagraphs of this Section 3.26, have, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor No Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service other than (i) coverage mandated by Applicable Law, (ii) death benefits or retirement benefits under any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged “employee pension plan,” as that term is defined in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i3(2) of ERISA, or (iii) deferred compensation benefits accrued as liabilities on the books of Mercer.
(k) With respect to each Plan that is a tax imposed pursuant to section 4975 or 4976 “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code other than any and is subject to Section 409A of the Code, (i) the written terms of such liability or tax Plan have at all times since January 1, 2009 been in compliance with, and (ii) such Plan has, at all times while subject to Section 409A of the Code, been operated in compliance with, Section 409A of the Code and all applicable guidance thereunder.
(l) All contributions to, and payments from, each Plan that would not, individually or have been required to have been made in accordance with their terms have been timely made and all obligations in respect of each Plan have been properly accrued and reflected on Xxxxxx’x financial statements.
(m) Section 3.26(m) of the aggregate, have Mercer Disclosure Schedule sets forth a Company Material Adverse Effectlist of the participants in each Director Deferred Compensation Agreement.
Appears in 2 contracts
Samples: Merger Agreement (United Fire & Casualty Co), Merger Agreement (Mercer Insurance Group Inc)
Employee Benefit Plans; ERISA. (a) With respect Except as disclosed to each the Company, at the date hereof, Parent and its subsidiaries do not maintain or contribute to any material 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, agreement or arrangement, and each other employee benefit planplans, programprograms, agreement arrangements or practices (including but not limited such plans, programs, arrangements or practices of Parent and its subsidiaries being referred to employment agreements) or arrangement (as the "Parent Plans"), currently maintained 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"), or contributed other similar material arrangements for the provision of benefits. Neither Parent nor its subsidiaries has any obligation to create any additional such plan or to amend any such plan so as to increase benefits thereunder, except as required under the terms of the Parent Plans, under existing collective bargaining agreements or to be contributed to comply with applicable law.
(b) Except as disclosed by Parent; (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" there have been no prohibited transactions within the meaning of Section 4001 406 or 407 of ERISA, for the benefit of any employee ERISA or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each Section 4975 of the following documents:
(i) Code with respect to any of the Parent Plans that could result in penalties, taxes or liabilities which, singly or in the aggregate, could have a copy of each Plan that is in writing (including all amendments thereto);
Parent Material Adverse Effect; (ii) a copy except for premiums due, there is no outstanding liability in excess of $100,000.00, whether measured alone or in the annual report and actuarial reportaggregate, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA with respect to any of the Parent Plans; (iii) neither the Pension Benefit Guaranty Corporation nor any plan administrator has been incurred by Company, instituted proceedings to terminate any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk of the Parent Plans subject to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA other than in a "standard termination" described in Section 4041(b) of ERISA.
; (cvi) No Plan subject to the minimum funding requirements of section 412 none of the Code or section 302 of ERISA or any trust established thereunder Parent Plans has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the Parent Plans ended prior to the date hereofof this Agreement; and (v) the current present value of all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) projected benefit obligations under each of the Company Disclosure LetterParent Plans which is subject to Title IV of ERISA did not, no Plan as of its latest valuation date, exceed the then current value of the assets of such plan allocable to such benefit liabilities by more than the amount, if any, disclosed in the Parent Financial Statements, based upon reasonable actuarial assumptions currently utilized for such Parent Plan; (vi) 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; (vii) each of the Parent Plans which is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter from been determined by the Internal Revenue Service as to its qualification andbe so qualified and such determination has not been modified, revoked or limited by failure to Company's knowledgesatisfy any condition thereof or by a subsequent amendment thereto or a failure to amend, no amendment has been made 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 Plan since necessary retroactive amendments has not expired; (viii) to the date best knowledge of such letter that is likely to result 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 disqualification ordinary course; and (ix) Parent and its subsidiaries have no current liability in excess of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws$100,000.00, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually whether measured alone or in the aggregate, have a material adverse effect for plan termination or withdrawal (complete or partial) under Title IV of ERISA based on any such Plan.
(g) Except as expressly provided in this Agreement, plan to which any exhibit hereto, a Plan or as otherwise agreed in writing by entity that would be deemed one employer with Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability its subsidiaries under Section 409 4001 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 414 of the Code other than contributed during the period of time covered by the applicable statute of limitations (a "Parent Controlled Group Plan"), and Parent and its subsidiaries do not reasonably anticipate that any such liability will be asserted against Parent or tax that would notany of its subsidiaries, individually or none of the Parent Controlled Group Plans has an "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code), and no Parent Controlled Group Plan has an outstanding funding waiver which could result in the aggregateimposition of liens, have a Company Material Adverse Effectexcise taxes or liability in excess of $100,000.00 against Parent and its subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Nelnet Inc), Merger Agreement (Nelnet Inc)
Employee Benefit Plans; ERISA. (a) Schedule 5.13 sets forth a true and complete list of the Benefit Plans of KKR and the KKR Subsidiaries.
(b) KKR has delivered to FRI, with respect to all Benefit Plans of KKR and the KKR Subsidiaries, true, complete and correct copies of the following: all plan documents and the most recent summary plan descriptions and any subsequent summaries of material modifications or other material employee communications discussing any employee benefit provided thereunder; forms 5500 as filed with the IRS for the most recent three plan years; all trust agreements with respect to the Benefit Plans of KKR and the KKR Subsidiaries; copies of any contracts with service providers and insurers providing benefits for participants or liability insurance or bonding for the sponsors, administrators or trustees of any Benefit Plan of KKR and the KKR Subsidiaries; the two most recent annual audits and accountings of plan assets for all funded plans; the most recent IRS determination letter for all plans qualified under Code section 401(a); all handbooks, manuals, and similar documents governing material employment policies, practices and procedures and each Form S-8 and each prospectus related thereto filed or used in the past three years.
(c) With respect to each Benefit Plan of KKR and the KKR Subsidiaries: (i) each Benefit Plan has been administered in compliance in all material bonusrespects, deferred compensationwith its terms including, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to, any provisions relating to employment agreements) or arrangement contributions thereunder, and is in compliance in all material respects with the applicable provisions of ERISA, the Code and all other Applicable Laws (the "Plans"including, without limitation, provisions relating to funding, filing, termination, reporting, disclosure and continuation coverage obligations pursuant to Title V of COBRA), currently maintained or contributed to or required to be contributed to by (i) Company, ; (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a no Benefit Plan which is an "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the employee pension benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiencyplan" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f3(2) of ERISA) has been the Company Disclosure Letter, no Plan is subject of a "multiemployer pension plan,reportable event" (as defined in section 3(37) Section 4043 of ERISA) and to the knowledge of KKR, nor is any Plan a plan there have been no "prohibited transactions" (as described in Section 4063(a) section 4975 of the Code or in Part 4 of Subtitle B of Title I of ERISA.
) with respect to any Benefit Plan of KKR and the KKR Subsidiaries; (eiii) Each there are no Proceedings (other than routine claims for benefits) pending or to the knowledge of KKR threatened with respect to any Benefit Plan, the assets of any trust thereunder, or the Benefit Plan sponsor or the Benefit Plan administrator with respect to the design or operation of any Benefit Plan; (iv) each Benefit Plan which is intended to be "qualified" within the meaning of section 401(a) of the Code is so qualified, and any trust created pursuant to any such Benefit Plan is exempt from federal income tax under section 501(a) of the Code and the IRS has received issued each such Benefit Plan a favorable determination letter from which to KKR's knowledge is currently applicable; (v) KKR is not aware of any circumstance or event which would jeopardize the Internal Revenue Service tax-qualified status of any such Benefit Plan or the tax-exempt status of any related trust, or would cause the imposition of any material liability, penalty or tax under ERISA or the Code with respect to any Benefit Plan; (vi) no unsatisfied liabilities to participants, the IRS, DOL, the PBGC or to any other Person have been incurred as to its qualification and, to Company's knowledge, no amendment a result of the termination of any Benefit Plan; and (vii) there has been made no event with respect to a Benefit Plan which would require disclosure under Sections 4062(c), 4063(a) or 4041(e) of ERISA.
(d) Neither KKR nor the KKR Subsidiaries maintains or is obligated to contribute to or has ever maintained or been obligated to contribute to a Multiemployer Plan or any such "multiple employer plan" (within the meaning of section 413(c) of the Code).
(e) All reports and information required to be filed with the DOL, IRS and PBGC and with plan participants and their beneficiaries with respect to each Benefit Plan since of KKR and the date of such letter that is likely to result in the disqualification of such PlanKKR Subsidiaries have been filed.
(f) Each of Except as set forth on Schedule 5.13(f) and except to the Plans has been operated extent required by COBRA and administered in all respects in accordance with applicable lawsany similar state law, including, but not limited to, ERISA and neither KKR nor the Code, except KKR Subsidiaries maintain any retiree life and/or retiree health insurance plans which provide for continuing benefits or coverage for any failure to so operate employee or administer any beneficiary of an employee after such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Planemployee's termination of employment.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Companyset forth on Schedule 5.13(g), the consummation of the transactions contemplated by this Agreement will not
, either alone or in combination with another event, (iviii) entitle any current or former employee or officer of Company KKR or any Company KKR Subsidiary to severance pay, unemployment compensation or any other payment, or
(iiix) accelerate the time of payment or vesting, or increase the amount of compensation due to any such employee employee, or officer(x) result in any liability under Title IV of ERISA.
(h) With respect Except as set forth on Schedule 5.13(h), no amounts payable under the Benefit Plans of KKR will fail to each Plan that is funded wholly or partially through an insurance policy, be deductible for federal income tax purposes by virtue of section 280G of the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable PlanCode.
(i) There are no pending or, to the Company's knowledge, threatened claims by or Except as set forth on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefitsSchedule 5.13(i), other than no Benefit Plan of KKR and the KKR Subsidiaries distributes, invests in or holds as plan assets or otherwise, any such claims that would not, individually equity securities of KKR or in the aggregate, have a Company Material Adverse Effectany Affiliate.
(j) Neither Company nor Except as contemplated herein, KKR and the KKR Subsidiaries have no commitment or obligation to (i) create or incur material liability with respect to or cause to exist any Company Subsidiary orother employee benefit plan, program or arrangement, (ii) enter into any material contract or agreement to the Company's knowledgeprovide compensation or benefits to any individual or (iii) modify or terminate any Benefit Plan, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, other than with respect to a modification or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of termination required by ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectCode.
Appears in 2 contracts
Samples: Merger Agreement (Koo Koo Roo Inc/De), Merger Agreement (Family Restaurants)
Employee Benefit Plans; ERISA. (a) With respect to each material bonusExcept as disclosed in the Company SEC Documents filed with the SEC since January 1, deferred compensation2008, incentive compensationthere exists no employment, stock purchaseconsulting, stock optionretention, severance change in control, severance, termination or termination paysimilar agreement, hospitalization arrangement or other medicalunderstanding (collectively, life the “Employment Agreements”) between the Company and any individual current or other insuranceformer employee, supplemental unemployment benefits, profit-sharing, pensionofficer or director of, or retirement planconsultant to, program, agreement the Company or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate")incorporated, that that, together with the Company is would be deemed a "“single employer" ” within the meaning of Section 4001 4001(b) of ERISA or Section 414 of the Code (each, an “ERISA Affiliate”).
(b) Section 3.13(b) of the Company Disclosure Schedule contains a correct and complete list of all (i) “employee pension benefit plans” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) (sometimes referred to herein as “Pension Plans”), including any such Pension Plans that are “multiemployer plans” (as such term is defined in Section 4001(a)(3) of ERISA) (collectively, the “Multiemployer Pension Plans”), (ii) “employee welfare benefit plans” (as defined in Section 3(1) of ERISA), and (iii) all other benefit or compensation plans, policies, programs, agreements or arrangements, including any bonus, deferred compensation, severance pay, retention, change in control, employment, consulting, pension, profit-sharing, retirement, insurance, stock purchase, stock option, incentive or equity compensation or other welfare or fringe benefit plan, program, policy, agreement, arrangement or practice sponsored, maintained, contributed to or required to be contributed to, by the Company, any Subsidiary of the Company or any ERISA Affiliate, for the benefit of any employee current or former employee employees, officers, consultants or directors of Company, any the Company Subsidiary or any Company an ERISA Affiliate, or with respect to which the Company, its Subsidiaries or an ERISA Affiliate could reasonably have any liability (collectively, the “Benefit Plans”). The Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, true Parent and Merger Sub correct and complete copies of each of the following documents:
(i) a copy of each Benefit Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement Employment Agreement (including all amendments thereto) or complete written descriptions of each Benefit Plan or Employment Agreement that is not otherwise in writing, (ii) the most recent annual report on Form 5500 and the latest financial statements all schedules thereto filed with respect to the last reporting period ended immediately prior each Benefit Plan, to the date hereof; and
extent applicable, (iii) the most recent summary plan description, summary of material modifications and plan prospectus for each Benefit Plan, to the extent applicable, (iv) each current trust agreement, insurance contract or policy, group annuity contract and any other funding arrangement relating to any Benefit Plan, to the extent applicable, (v) the most recent determination letter received prior actuarial report, financial statement or valuation report, to the date hereof from the extent applicable, (vi) a current Internal Revenue Service with respect to each Plan intended to qualify under section 401 of favorable determination letter or opinion letter on which the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company its ERISA Affiliate that has not been satisfied in full when dueis entitled to rely, to the extent applicable, (vii) all material correspondence to or from any Governmental Entity relating to any Benefit Plan, and no condition exists that presents a material risk (viii) all discrimination tests for each Benefit Plan for the three most recent plan years, to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISAextent applicable.
(c) No Each Benefit Plan subject to is and has at all times been operated and administered in all material respects in accordance with its terms and in compliance in all material respects with applicable Law, including ERISA and the minimum funding requirements of section 412 Code. Each Benefit Plan and Employment Agreement has been administered in good faith compliance with Section 409A of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely madeextent applicable.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Pension Plan intended to be "“qualified" ” within the meaning of section Section 401(a) of the Code has received a favorable recent and currently effective determination letter (or is entitled to rely on a currently effective opinion letter) from the Internal Revenue Service as to that such Pension Plan is so qualified and that its qualification related trust is exempt from taxation under Section 401(a) and 501(a) of the Code, and, to the knowledge of the Company's knowledge, no amendment has condition exists that would reasonably be expected to adversely affect such qualification.
(e) None of the Benefit Plans is, and the Company, any Subsidiary of the Company and any ERISA Affiliate of either have never maintained or been made a party to, or had an obligation to any contribute to, (i) a “single employer plan” (as such Plan since term is defined in Section 4001(a)(15) of ERISA) subject to Section 412 of the Code or Title IV of ERISA (a “Title IV Plan”), (ii) a “multiple employer plan” or “multiple employer welfare arrangement” (as such terms are defined in ERISA), or (iii) a funded welfare benefit plan (as such term is defined in Section 419 of the Code). There are no unpaid contributions due prior to the date of such letter this Agreement with respect to any Benefit Plan that is likely are required to result in have been made under the disqualification terms of such Benefit Plan, any related insurance contract or any applicable Law and all contributions due have been timely made.
(f) Each Neither the Company, any Subsidiary of the Plans Company, nor any ERISA Affiliate has been operated and administered engaged in all respects a “prohibited transaction” (as such term is defined in accordance with applicable laws, including, but not limited to, Section 406 of ERISA and Section 4975 of the Code) or any other breach of fiduciary responsibility with respect to any Benefit Plan that reasonably could be expected to subject the Company, except for any failure Subsidiary of the Company or any ERISA Affiliate to so operate any material tax or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Planpenalty.
(g) Except as expressly provided in this AgreementWith respect to any Benefit Plan: (i) no filing, application or other matter is pending with the Internal Revenue Service, the United States Department of Labor or any exhibit heretoother Governmental Entity, a and (ii) there is no action, suit, audit, investigation or claim pending, or to the Company’s knowledge, threatened or anticipated, other than routine claims for benefits. There is no contract or arrangement, plan or agreement by or with the Company or any Subsidiary of the Company (including Benefit Plans and Employment Agreements) covering any person that, individually or collectively, could give rise to the payment of any amount by the Company or any Subsidiary of the Company that would not be deductible by the Company by reason of Section 280G or Section 162(m) of the Code. No Benefit Plan or as otherwise agreed Employment Agreement provides for any gross-up or similar payment with respect to Taxes which may be incurred in writing by Parent and connection therewith.
(h) The Company, its Subsidiaries and any ERISA Affiliates of either have no obligations to provide any health benefits or other non-pension benefits (whether or not insured) to retired or other former employees, directors or consultants, except as specifically required by Part 6 of Title I of ERISA (“COBRA”).
(i) Neither the negotiation or the execution of this Agreement nor the consummation of any of the transactions contemplated by this Agreement will not
hereby will, either alone or in combination with another event, (i) entitle any current or former employee employee, director or officer consultant of the Company or any Subsidiary of the Company Subsidiary to severance payany payment or benefit (or result in the funding of any such payment or benefit) or result in any forgiveness of indebtedness with respect to any such persons, 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 compensation, equity award or officerother benefits otherwise payable by the Company or any Subsidiary of the Company, (iii) result in the acceleration of the time of payment, funding or vesting of any compensation, equity award or other benefits, or (iv) result in the imposition of any restriction on the ability to amend or terminate any Benefit Plan or Employment Agreement.
(hj) With respect to each Benefit Plan that is subject to the law of any jurisdiction outside the United States (each, a “Foreign Benefit Plan”): (i) all employer and employee contributions to each Foreign Benefit Plan required by Law or by the terms of such Foreign Benefit Plan have been timely made, or, if applicable, accrued, in accordance with applicable accounting practices; (ii) the fair market value of the assets of each funded wholly or partially through an insurance policyForeign Benefit Plan, the Company liability of each insurer for any Foreign Benefit Plan funded through insurance or the book reserve established for any Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Closing, with respect to all current and the Company Subsidiaries do not have any current liability under any former participants in such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior plan according to the closing other actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Benefit Plan and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than any such liability that, individually or benefit obligations; and (iii) each Foreign Benefit Plan required to be registered has been registered and has been maintained in the aggregate, would not have a material adverse effect on the good standing with applicable PlanGovernmental Entities.
(ik) There are no pending or, Each Benefit Plan may be amended or terminated without material liability to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, of its Subsidiaries on or at any Company ERISA Affiliate, any of time after the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectClosing.
Appears in 2 contracts
Samples: Purchase Agreement (Hospitality Properties Trust), Merger Agreement (Sonesta International Hotels Corp)
Employee Benefit Plans; ERISA. (a) With respect to each material 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, agreement or arrangement, and each other All employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" plans within the meaning of Section 4001 3(3) of ERISAERISA and each bonus, for profit sharing, compensation, pension, severance, deferred compensation, fringe benefit, insurance, welfare, post-retirement, health, life, stock option, stock purchase, restricted stock, disability, accident, sick, vacation, termination, unemployment, individual employment, consulting, executive compensation, incentive, commission or sales arrangement, change in control, noncompetition, and other plan, agreement, policy, trust fund, or arrangement (whether written or unwritten, insured or self-insured) covering employees or independent contractors of CV and the benefit CV Subsidiaries (whether current, former or retired) or their beneficiaries (collectively, the "CV Benefit Plans") are listed in Schedule 7.14 of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true CV Disclosure Letter. True and complete copies of the CV Benefit Plans have been made available to Kranzco. To the extent applicable, each CV Benefit Plan complies, in all material respects, with the requirements of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of such CV Benefit Plan's plan documents, and any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each CV Benefit Plan intended to be "qualified" within the meaning of section qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as (which may be a favorable determination letter issued to its qualification anda prototype sponsor for any CV Benefit Plan which is a standardized prototype plan) and is administered in compliance in all material respects with ERISA and the Code and all applicable regulations thereunder and with the terms of such CV Benefit Plan's plan document. None of CV, any of the CV Subsidiaries, any entity that would be deemed a single-employer with CV or any of the CV Subsidiaries under Section 414(b), (c), (m) or (o) of the Code (each an "CV ERISA Affiliate") or any of their respective predecessors has ever contributed to, contributes to, has ever been required to Company's knowledgecontribute to, or otherwise participated in or participates in or in any way, directly or indirectly, has any liability with respect to any employee pension benefit plan (within the meaning of ERISA Section 3(2)) which is subject to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA, including, without limitation any, "multiemployer plan" (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code), or any single employer pension plan. None of CV, any of the CV Subsidiaries or any CV Benefit Plan has incurred or is expected to incur any liability or penalty under Section 4975 of the Code or Sections 406 or 502(i) of ERISA. To the knowledge of CV, there are no amendment anticipated claims against or otherwise involving any of the CV Benefit Plans and no suit, action or other litigation (excluding claims for benefits incurred in the ordinary course of CV Benefit Plan activities) is pending or has been made brought against or with respect to any such Plan since CV Benefit Plan. All contributions required to be made as of the date hereof to the CV Benefit Plans have been made or provided for by CV by full accruals as if all targets required by such CV Benefit Plan had been or will be met at maximum levels on its financials. Except as provided in the CV Disclosure Letter, the execution of such letter and performance of the transactions contemplated by this Agreement will not (either alone or upon the occurrence of any additional or subsequent events including, without limitation, a termination of employment following the transactions contemplated by this Agreement) constitute an event under any CV Benefit Plan that is likely will or may reasonably be expected to result in any payment, acceleration, vesting or increase in benefits with respect to any employee, trustee, director, former employee or director of CV or any of the disqualification CV Subsidiaries, whether or not any such CV Benefit Plan would be an "excess parachute payment" (within the meaning of such PlanSection 280G of the Code).
(fb) Each None of CV, any of the Plans CV Subsidiaries or any CV ERISA Affiliate has any unfunded liabilities for benefits or claims accrued pursuant to any CV Benefit Plan, which CV Benefit Plan is not intended to be qualified under Section 401(a) of the Code, and that is an employee pension benefit plan within the meaning of ERISA Section 3(2), a nonqualified deferred compensation plan or an excess benefit plan.
(c) None of CV, any of the CV Subsidiaries or any CV ERISA Affiliate maintains any plan which is a "group health plan" (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated and administered in all respects in accordance compliance with the applicable lawsrequirements of Section 601 of ERISA and Section 4980B of the Code, and none of CV, any of the CV Subsidiaries or any CV ERISA Affiliate is subject to or expected to be subject to any liability, including without limitation, additional contributions, fines, penalties or loss of tax deduction as a result of such administration and operation. None of CV, any of the CV Subsidiaries or any CV ERISA Affiliate has incurred or is expected to incur any liability from tax, excise tax, penalty or fee with respect to any Plan, including, but not limited to, taxes arising under Sections 4971 through 4980B of the Code, and no event has occurred and no circumstance has existed that could give rise to any such liability. Except as required by Section 4980B of the Code and Sections 601 through 607 of ERISA and the regulations promulgated thereunder, the Federal Social Security Act or a plan qualified under Section 401(a) of the Code, and except for any failure to so operate or administer such Plans that would not, individually or as otherwise disclosed in the aggregateCV Disclosure Letter, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation none of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA AffiliateCV, any of the CV Subsidiaries or any CV ERISA PlansAffiliate maintains or contributes to any plan or arrangement which provides, or has any liability to provide life insurance, medical or other employee welfare benefits (whether or not vested) to any employee or former employee upon his retirement or termination of employment with CV or any of the CV Subsidiaries.
(d) No amounts payable under any CV Benefit Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G or 162(m) of the Code. None of CV, any trust created thereunderCV Subsidiaries or any CV ERISA Affiliate, or any trustee officer or administrator thereof employee thereof, has engaged in a transaction in connection with which Company made any promises or any Company Subsidiary orcommitments, whether legally binding or not, to Parent's knowledgecreate any additional plan, any Company ERISA Affiliateagreement, any of the ERISA Plans, any such trust or any trustee or administrator thereofarrangement, or to modify or change any party dealing with the ERISA Plans existing CV Benefit Plan. No event, condition or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax circumstance exists that would not, individually prevent the amendment or in the aggregate, have a Company Material Adverse Effecttermination of any CV Benefit Plan.
Appears in 2 contracts
Samples: Merger Agreement (Cv Reit Inc), Merger Agreement (Kranzco Realty Trust)
Employee Benefit Plans; ERISA. (a) With Section 4.12(a) of the Company Disclosure Letter includes a complete list, as of the date hereof, of each material employee benefit plan, program or policy providing benefits to any current or former employee, officer or director 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, or with respect to each which the Company or any of its Subsidiaries has or may have any Liability, including any employee welfare benefit plan within the meaning of Section 3(1) of ERISA or any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any material bonus, incentive, deferred compensation, incentive compensationvacation, stock Table of Contents purchase, stock option, severance severance, employment, change of control or termination payfringe benefit or similar arrangement, hospitalization or other medicalagreement, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, programprogram or policy (collectively, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "“Company Benefit Plans"”), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, . The Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, true and complete copies Parent a copy of each of the following documents:
(i) a copy of each Plan that is in writing (Company Benefit Plans, including all any amendments thereto);
(ii) a copy of the annual report , and actuarial reportwhere applicable, if required under ERISAany related trust agreement, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of annuity or insurance contract, the most recent Summary Plan Descriptionactuarial valuation, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent summary plan description, the most recent prospectus, the most recent IRS determination letter received prior to letter, and the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Codemost recent annual report (Form 5500) and audited financial statements.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
Company Material Adverse Effect: (i) entitle any current the Company and its Subsidiaries have complied, and are now in compliance, with all provisions of all laws and regulations applicable to Company Benefit Plans and each Company Benefit Plan has been administered in accordance with its terms, including the making of all required contributions and the reflection by the Company of all required accruals on its financial statements; (ii) no event or former employee or officer of condition exists which would reasonably be expected to subject the Company or any of its Subsidiaries to Liability in connection with the Company Subsidiary to severance pay, unemployment compensation Benefit Plans or any other paymentplan, or
(ii) accelerate the time of payment or vestingprogram, or increase policy sponsored or contributed to by any of their respective ERISA Affiliates other than the amount provision of compensation due any such employee or officer.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy benefits thereunder in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
ordinary course; and (iiii) There there are no pending or, to the Company's ’s knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan Actions (other than routine claims for benefitsbenefits in the ordinary course) relating to Company Benefit Plans which have been asserted or instituted and which would reasonably be expected to result in any Liability of the Company or any of its Subsidiaries.
(c) In no event will the execution and delivery of this Agreement or any other related agreement, the consummation of the transactions contemplated hereby or thereby (including, without limitation, the Offer), or the Company Stockholder Approval (either alone or in conjunction with any other than event, such as termination of employment) result in, cause the accelerated vesting, exercisability, funding or delivery of, or increase the amount or value of, any such claims material payment or benefit to any current or former employee, officer or director of the Company or any of its Subsidiaries or any beneficiary or dependent thereof or result in a limitation on the right of the Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust.
(d) Section 4.12(d) of the Company Disclosure Letter identifies each Company Benefit Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code or is intended to be similarly qualified or registered under applicable foreign law (collectively, the “Company Qualified Plans”). Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the IRS (or other relevant foreign regulatory agency) has issued a favorable determination letter (or similar approval under foreign law) with respect to each Company Qualified Plan and the related trust that has not been revoked, and the Company knows of no existing circumstances or events that have occurred that would reasonably be expected to adversely affect the qualified status of any Company Qualified Plan or the related trust, which cannot be cured without a Company Material Adverse Effect.
(je) Neither No Company nor any Company Subsidiary or, to the Company's knowledge, any Benefit Plan or Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunderAffiliate Plan is, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary orever been, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Title IV or Section 409 302 of ERISA or Section 502(i412 or 4971 of the Code.
(f) No Company Benefit Plan or Company ERISA Affiliate Plan is, or has ever been, a Multiemployer Plan.
(g) There is no contract, agreement, plan or arrangement to which the Company or any Subsidiary of the Company is a party, including but not limited to the provisions of this Agreement, that, individually or collectively, could give rise to the payment of any material amount that would not be deductible pursuant to Section 162(m) of ERISAthe Code.
(h) No amount 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 or any other related agreement, the consummation of the transactions contemplated hereby or thereby, or the stockholder approval of the Merger (either alone or in conjunction with any other event, such as termination of employment), by any employee, officer or director of the Company or any Subsidiary of the Company who is a “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G—1) under any Company Benefit Plan or otherwise could be characterized as a “parachute payment” (as defined in Section 280G(b)(2) of the Code). The Company has made Table of Contents available to Parent all necessary information to determine, as of the date hereof, the estimated maximum amount that could be paid to each disqualified individual in connection with the transactions contemplated by this Agreement under all employment, severance and termination agreements, other compensation arrangements and Company Benefit Plans currently in effect, assuming that the individual’s employment with the Company is terminated immediately after the Effective Time. The Company has also provided to Parent (i) the grant dates, exercise prices and vesting schedules applicable to each Company Option granted to the individual; (ii) the grant dates and vesting schedules applicable to each grant of Company Restricted Stock, (iii) the “base amount” (as defined in Section 280G(b)(e) of the Code) for each such individual as of the date of this Agreement and (iv) the maximum additional amount that the Company has an obligation to pay to each disqualified individual to reimburse the disqualified individual for any excise tax imposed pursuant to section 4975 or 4976 under Section 4999 of the Code other than with respect to the disqualified individual’s excess parachute payments (including any such liability taxes, interest or tax that would not, individually or in penalties imposed with respect to the aggregate, have a Company Material Adverse Effectexcise tax).
Appears in 2 contracts
Samples: Merger Agreement (Allergan Inc), Merger Agreement (Allergan Inc)
Employee Benefit Plans; ERISA. (a) With respect to each material bonusExcept as set forth in ASARCO's SEC Reports or as would not have a Material Adverse Effect on ASARCO and its Subsidiaries, deferred compensationtaken as a whole, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, all Employee Benefit Plans (ii) other than any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), Employee Benefit Plan that together with Company is a "single employermultiemployer plan" within the meaning of Section 4001 3(37) of ERISAERISA (a "Multiemployer Plan")) of ASARCO are in material compliance with all applicable requirements of Law, for including ERISA and the benefit Code, and (ii) neither ASARCO 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 ASARCO's financial statements, nor to the best knowledge of ASARCO, are any such liabilities or obligations expected to be incurred. Except as described in ASARCO's (or any of its Subsidiaries') SEC Reports or as set forth in Section 3.7(a) of the ASARCO 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 employee additional or former employee subsequent events) constitute an event under any Employee Benefit Plan of CompanyASARCO that will or may result in acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Subsidiary employee. The only severance agreements or severance policies applicable to ASARCO or any Company ERISA Affiliateof its Subsidiaries are the agreements and policies specifically described in Section 3.7(a) of the ASARCO Disclosure Schedule.
(b) With respect to each of its Plans, Company ASARCO has heretofore delivered or will after the date hereof make made available to Parent, upon request, true Parent and the Purchaser complete and correct copies of each of the following documents:
, as applicable: (i) a copy of each the Plan that is in writing (including all and any amendments thereto);
; (ii) a copy of the most recent annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
; (iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
actuarial report; (iv) if a copy of the most recent Summary Plan is funded through a trust or any other third party funding vehicle, Description and all material modifications; (v) a copy of the trust or other funding agreement (including all and any amendments thereto) ; and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(vvi) the most recent determination letter received prior to the date hereof from the Internal Revenue Service (the "IRS") with respect to each Plan that is intended to qualify be qualified under section Section 401 of the CodeCode and all notices of reportable events received following receipt of such letter. ASARCO will deliver to Parent and the Purchaser a copy of each Foreign Plan within thirty days following the date hereof.
(bc) Section 3.7(c) of the ASARCO Disclosure Schedule sets forth a list of each employee of ASARCO (or any Subsidiary) who is a party to any agreement (whether written or oral) with respect to such person's employment by ASARCO 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. ASARCO has made available to Parent and the Purchaser 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 Company, any Company Subsidiary ASARCO or any Company ERISA Affiliate within the past six years that has not been satisfied in full when duefull. To the best knowledge of ASARCO, and no condition exists that presents a material risk to Company ASARCO, any of its Subsidiaries or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, that is reasonably likely to have a Company Material Adverse EffectEffect on ASARCO. The Pension Benefit Guaranty Corporation has not instituted proceedings to terminate any of the Employee Benefit Plans, or give rise and, to the knowledge of ASARCO, no condition exists that presents a lien under material risk that such proceedings will be instituted. Except as would not have a Material Adverse Effect on ASARCO, with respect to each of the Employee Benefit Plans that is subject to Title IV of ERISA.
(c) No Plan subject , 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 minimum funding requirements of section 412 then current value of the Code or section 302 assets of ERISA 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 Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the Employee Benefit Plans ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) this Agreement. None of the Company Disclosure Letter, no Plan Employee Benefit Plans is a "multiemployer pension plan," as defined in section 3(37) Multiemployer Plan. To the knowledge of ERISA, nor ASARCO the Employee Benefit Plans that is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter is so qualified and the trusts maintained thereunder are exempt from taxation under Section 501(a) of the Internal Revenue Service Code. Except as to its qualification and, to Company's knowledgeset forth in Section 3.7(d) of the ASARCO Disclosure Schedule, no amendment has been made Employee Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee employees after retirement or officer other termination of Company service (other than coverage mandated by applicable Law or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policybenefits, the Company and full cost of which is borne by the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) former employee). There are no material pending or, to the Company's knowledge, or threatened claims by or on behalf of any of the PlansEmployee Benefit Plan, by any employee or beneficiary covered under any such Plan Employee Benefit Plan, or otherwise involving any such Employee Benefit Plan (other than routine claims for benefits), other than . No prohibited transaction has occurred with respect to any such claims Employee Benefit Plan that would notresult, individually directly or indirectly, 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 EffectEffect on ASARCO. Except as would not have a Material Adverse Effect on ASARCO, with respect to each Foreign Plan: (i) all amounts required to be reserved on account of each Foreign Plan have been so reserved in accordance with reasonable accounting practices prevailing in the country where such Foreign Plan is established, and (ii) each Foreign Plan required to be registered with a Governmental Entity has been registered, has been maintained in good standing with the appropriate Governmental Entities, and has been maintained and operated in accordance with its terms and applicable Law.
(je) Neither Company nor Except as otherwise set forth in Section 3.7(e) of the ASARCO Disclosure Schedule, no director or officer or other employee of ASARCO will become entitled to any Company Subsidiary ortermination, 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 a result of the Company's knowledgetransactions contemplated by this Agreement (either standing alone or in conjunction with any additional or subsequent events).
(f) Except as set forth in Section 3.7(f) of the ASARCO Disclosure Schedule, any Company ERISA Affiliate, 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 ERISA Planstransactions contemplated by this Agreement by any employee, any trust created thereunder, officer or director of ASARCO or any trustee 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 administrator thereof has engaged other compensation arrangement currently in effect would not be characterized as an "excess parachute payment" or a transaction "parachute payment" (as such terms are defined in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any Section 280G(b)(1) of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(iCode).
(g) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or As used in the aggregate, have a Company Material Adverse Effect.this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Grupo Mexico Sa De Cv /Fi), Merger Agreement (Asarco Inc)
Employee Benefit Plans; ERISA. (a) With respect to each material 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, agreement or arrangement, Schedule 4.9 contains an accurate and each other complete list of all "employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer," within the meaning of Section 3(3) of ERISA and any other bonus, profit sharing, pension, severance, savings, deferred compensation, fringe benefits, insurance, welfare, health, post-retirement benefit, life, stock option, disability, accident, sick pay, vacation, individual employment, consulting, incentive, change in control, or other plan, agreement, policy, trust fund, or arrangement (whether written or unwritten, insured or self-insured):
(i) established, maintained, sponsored, or contributed to (or with respect to which any obligation to contribute has been undertaken) within the last six years by Oakridge, the Oakridge Subsidiaries or any entity that would be deemed a "single employer" with Oakridge under Section 414(b), (c), (m), or (o) of the Code or Section 4001 of ERISA, for the benefit ERISA (an "ERISA Affiliate") on behalf of any employee employee, director, or former employee consultant of CompanyOakridge or an Oakridge Subsidiary (whether current, any Company Subsidiary former, or retired) or their beneficiaries or
(ii) with respect to which Oakridge, the Oakridge Subsidiaries or any Company ERISA AffiliateAffiliate has or has within the last six years had any obligation on behalf of any such employee, Company has heretofore delivered director, consultant or will after beneficiary of Seal or a Seal Subsidiary (each an "Oakridge Plan" and, collectively, the date hereof make available to Parent, upon request, true "Oakridge Plans"). True and complete copies of each of the following documents:
(i) a copy of each Plan that Oakridge Plans which is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section Section 401 (a) of the Code and each other Oakridge Plan which Oakridge, the Oakridge Subsidiaries or any ERISA Affiliate has or could reasonably be expected to have a current or future actual or potential liability, and the material documents relating thereto (including, without limitation, any summary plan description, annual reports, and communications from the IRS or any other government entity) have been provided to Seal. None of the Oakridge Plans is (A) a "multi-employer plan," as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code, (B) otherwise subject to Title IV of ERISA or (C) subject to Section 412 of the Code. With respect to each employee pension benefit plan subject to Title IV of ERISA or Section 412 of the Code (other than the Oakridge Plans) maintained or contributed to by an ERISA Affiliate, (A) there is no actual or contingent material liability of Oakridge or any Oakridge Subsidiary under Title IV of ERISA or Section 412 of the Code to such plan, the Pension Benefit Guaranty Corporation or other governmental authority and (B) the assets of Oakridge or any Oakridge Subsidiary have not been subject to a lien under ERISA or the Code.
(b) No liability under Title IV Except where failures to comply with each of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that the following representations has not been satisfied in full when due, and no condition exists that presents a material risk or could not reasonably be expected to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which willresult, individually or and in the aggregate, have a Company in an Oakridge Material Adverse Effect, with respect to each of the Oakridge Plans on Schedule 4.9:
(i) except as set forth on Schedule 4.9, each Oakridge Plan intended to qualify under Section 401(a) of the Code is qualified and has received a determination letter under Revenue Procedure 93-39 or give rise subsequent IRS guidance to a lien the effect that the Oakridge Plan is qualified under Title IV Section 401 of the Code and any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of the Code and nothing has occurred or is expected to occur through the date of the Closing that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) all payments required by any Oakridge Plan, any collective bargaining agreement or other agreement, or by law (including, without limitation, all contributions, insurance premiums, or inter-company charges) with respect to all periods through the date of the Closing shall have been made prior to the Closing or accrued on the Oakridge Financial Statements in accordance with GAAP;
(iii) no claim, lawsuit, arbitration or other action has been threatened, asserted, instituted, or anticipated against the Oakridge Plans, any trustee or fiduciaries thereof, Oakridge, any Oakridge Subsidiary, any ERISA Affiliate, any director, officer, or employee thereof, or any of the assets of any trust of the Oakridge Plans;
(iv) the Oakridge Plan has been maintained and administered at all times in compliance with its terms and all applicable laws, rules and regulations, including, without limitation, ERISA and the Code;
(v) no "prohibited transaction," within the meaning of Section 4975 of the Code and Section 406 of ERISA, has occurred or is expected to occur with respect to the Oakridge Plan;
(vi) no Oakridge Plan is or is expected to be under audit or investigation by the IRS, Department of Labor, or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty; and
(vii) with respect to each Oakridge Plan that is funded mostly or partially through an insurance policy, none of Oakridge, Oakridge Subsidiaries or any ERISA Affiliate has any liability in the nature of retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring on or before the Closing.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the The consummation of the transactions contemplated by this Agreement will not
(i) entitle not give rise to any current or former employee or officer of Company or any Company Subsidiary to material liability, including, without limitation, liability for severance pay, unemployment compensation compensation, termination pay, or any other paymentwithdrawal liability, or
(ii) or accelerate the time of payment or vesting, vesting or increase the amount of compensation or benefits due to any employee, director, shareholder, or beneficiary of Oakridge or any Oakridge Subsidiary (whether current, former, or retired) or their beneficiaries solely by reason of such employee transactions. No amounts payable under any Oakridge Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G or officer.
162(m) of the Code. None of Oakridge, any Oakridge Subsidiary or any ERISA Affiliate maintains, contributes to, or in any way provides for any benefits of any kind whatsoever (hother than under Section 4980B of the Code, the Federal Social Security Act, or a plan qualified under Section 401(a) With respect of the Code) to each any current or future retiree or terminee. None of Oakridge, any Oakridge Subsidiary or any ERISA Affiliate has any unfunded liabilities pursuant to any Oakridge Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability intended to be qualified under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(iSection 401(a) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse EffectCode.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Exchange (Pearce M Lee), Agreement and Plan of Exchange (Seal Holdings Corp)
Employee Benefit Plans; ERISA. (a) With respect to Schedule 5.17 hereto contains a true and complete list of each material 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) the Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with the Company is would be deemed a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of the Company, any Company Subsidiary or any Company ERISA Affiliate. Schedule 5.17(a) hereto identifies each of the Plans that is an "employee benefit plan," as that term is defined in Section 3(3) of ERISA (such plans being hereinafter referred to collectively as the "ERISA Plans").
(b) With respect to each of the Plans, the Company has heretofore delivered or will after the date hereof make available deliver to Parent, upon request, Parent true and complete copies of each of the following documents:
(i) a copy of each the Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereofyears;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, ERISA with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofthereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section Section 401 of the Code.
(bc) No liability under Title IV of ERISA has been incurred by the Company, any Company Subsidiary or any Company ERISA Affiliate since the effective date of ERISA that has not been satisfied in full when duefull, and no condition exists that presents a material risk to Company or the Company, any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which willTitle. To the extent this representation applies to Sections 4064, individually 4069 or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under 4204 of Title IV of ERISA, it is made not only with respect to the ERISA Plans but also with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which the Company, a Subsidiary or an ERISA Affiliate made, or was required to make, contributions during the five-year period ending on the Effective Time.
(cd) No Except as disclosed in Schedule 5.17, with respect to each ERISA Plan which is subject to Title IV of ERISA, the minimum present value of accrued benefits under such plan, based upon the actuarial assumptions used for funding requirements purposes in the most recent actuarial report prepared by such plan's actuary with respect to such plan did not exceed, as of section 412 its latest valuation date, the then current value of the Code or section 302 assets of such plan allocable to such accrued benefits.
(e) Except as disclosed in Schedule 5.17, no ERISA Plan or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such each ERISA Plan ended prior to the date hereofEffective Time; and all contributions required to be made with respect thereto (whether pursuant to the terms term of any such ERISA Plan or otherwise) on or prior to the date hereof Effective Time have been timely made.
(df) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no No ERISA Plan is a "multiemployer pension plan," as defined in section Section 3(37) of ERISA, nor is any ERISA Plan a plan described in Section 4063(a) of ERISA.
(eg) Each ERISA Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter is so qualified and the trusts maintained thereunder are exempt from taxation under Section 501(a) of the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such PlanCode.
(fh) Each of the Plans has been operated and administered in all material respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(gi) Except as expressly provided disclosed in Schedule 5.17, no amounts payable under the Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code. Schedule 5.17 sets forth the aggregate amount of entitlements and other amounts that could be (i) received (whether in cash or property or the vesting of property) under any of the Plans as a result of any of the transactions contemplated by this AgreementAgreement by any person which is a "disqualified individual" (as such term is defined in Section 280G(c) of the Code) and (ii) characterized as an "excess parachute payment" (as such term is defined in Section 280G(b)(1) of the Code), plus the amount of any excise taxes that may be imposed with respect thereto and any additional amounts or gross-ups that may be paid with respect to such amounts.
(j) Except as disclosed in Schedule 5.17, no Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees of the Company, any exhibit heretoSubsidiary or any ERISA Affiliate beyond their retirement or other termination of service, a Plan other than (i) coverage mandated by applicable law, (ii) death benefits or retirement benefits under any "employee pension plan", as otherwise agreed that term is defined in writing Section 3(2) of ERISA, (iii) deferred compensation benefits accrued as liabilities on the books of the Company, any Subsidiary or any ERISA Affiliate or (iv) benefits the full cost of which is borne by Parent and Companythe current or former employee (or his beneficiary).
(k) Except as disclosed on Schedule 5.17, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company the Company, any Subsidiary or any Company Subsidiary ERISA Affiliate to severance pay, unemployment compensation or any other payment, orexcept as expressly provided in this Agreement,
(ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer, or
(iii) result in any prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available.
(hl) With respect to each Plan that is funded wholly or partially through an insurance policy, there will be no liability of the Company and Company, any Subsidiary or any ERISA Affiliate, as of the Company Subsidiaries do not have any current liability Effective Time, under any such insurance policy or ancillary agreement with respect to such insurance policy in the nature of a retroactive rate adjustment or adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Planclosing.
(im) There are no pending or, to the Company's knowledgepending, threatened or anticipated claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan Plan, or otherwise involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(jn) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company Subsidiary or any ERISA Affiliate, nor any of the ERISA Plans, nor any trust created thereunder, or nor any trustee or administrator thereof has engaged in a transaction in connection with which Company the Company, any Subsidiary or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust trust, or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to could be subject to either a material civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a material tax imposed pursuant to section Section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectCode.
Appears in 2 contracts
Samples: Merger Agreement (Acxiom Corp), Merger Agreement (Acxiom Corp)
Employee Benefit Plans; ERISA. (a) With respect to Schedule 3.9(a) of the Disclosure Schedule contains a true and complete list of each material bonus, deferred compensation, incentive compensation, stock purchase, stock option, restricted stock, deferred stock, stock appreciation right, vacation policy, superannuation, severance or termination pay, hospitalization or other medical, life or other insurance, flexible benefit, cafeteria plan, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans")arrangement, currently sponsored, maintained or contributed to by the Company or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISAits Subsidiaries, for the benefit of any employee or former employee of Company, any the Company Subsidiary or any Company of its Subsidiaries employed in the United States (the "Plans"). Schedule identifies each of the Plans (collectively, the "ERISA AffiliatePlans") that is an "employee benefit plan," as defined in section 3(3) of the Employee Retirement Security Income Plan of 1974, as amended ("ERISA").
(b) With respect to each Plan, the Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, Purchaser a true and complete copies copy of each of the following documents:
(i) a copy of each the Plan that is in writing (including all amendments thereto);
(ii) a copy of the most recent annual report and actuarial reportreport with respect to each such Plan, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent report on Form 5500 and Summary Plan Description, together with each Summary of Material Modifications, if Modifications required under ERISA, ERISA with respect to such Planthereto;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofthereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 401(a) of the Internal Revenue Code of 1986, as amended (the "Code").
(bc) Neither the Company nor any of its Subsidiaries sponsors, maintains, contributes to or has any obligation with respect to a Plan which is either a defined benefit plan or a money purchase plan or which is subject to Title IV of ERISA.
(d) No direct or indirect liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to the Company or any of its Subsidiaries with respect to any Plan and the Company Subsidiary does not reasonably expect that it or any Company ERISA Affiliate of incurring a liability its Subsidiaries will incur liabilities under such Title which willTitle, individually or in the aggregate, other than liabilities that would not have a Company Material Adverse Effect.
(e) No ERISA Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, or give rise to nor is any ERISA Plan a lien under Title IV plan described in section 4063(a) of ERISA.
(cf) No ERISA Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such each ERISA Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Closing Date. Each ERISA Plan intended to be "qualified" within the meaning of section 401(a) of the Code has received a favorable determination letter from been determined by the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment be so qualified (or timely application has been made therefor); to any such Plan the knowledge of the Company, no event has occurred since the date of such letter determination that is likely would adversely affect such qualification; and each trust maintained thereunder has been determined by the Internal Revenue Service to result in the disqualification of such Plan.
(fbe exempt from taxation under section 501(a) Each of the Plans Code. Except as disclosed in Schedule 3.9(f) of the Disclosure Schedule, each Plan has been operated and administered in all material respects in accordance with its terms and applicable lawslaw, including, including but not limited to, to ERISA and the Code, the Company and its Subsidiaries have substantially performed all obligations, whether arising by operation of law or by contract, required to be performed by them in connection with the Plans, each employee benefit plan, policy and arrangement applicable to employees of the Company and its Subsidiaries who are employed outside of the United States has been operated and administered in all material respects in accordance with its terms and applicable law and the Company and its Subsidiaries have substantially performed all obligations, whether arising by operation of law or by contract, required to be performed by them in connection with each such plan, policy and arrangement, except for any where a failure to so operate or administer or to perform such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, obligations would not have result in a material adverse effect on the applicable Plan.
(i) Material Adverse Effect. There are no pending orpending, or to the actual knowledge of the Company's knowledge, threatened threatened, material claims by or on behalf of any of the PlansPlan, by any employee or beneficiary covered under any such Plan Plan, or otherwise involving any such Plan (other than routine claims for benefits). Except as disclosed in Schedule 3.9(f) of the Disclosure Schedule, as of the date hereof, there is no matter pending (other than routine qualification determination filings) with respect to any of the Plans before any Governmental Entity, other than any such claims matters that would not, individually or in the aggregate, could not reasonably be expected to have a Company Material Adverse Effect.
(jg) Neither the Company nor any Company Subsidiary orof its Subsidiaries, to the Company's knowledge, any Company ERISA Affiliate, nor any of the ERISA Plans, nor any trust created thereunder, or nor any trustee or administrator thereof has engaged in a transaction in connection with which the Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliateof its Subsidiaries, any of the ERISA Plans, any such trust trust, or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to could be subject to either (i) breach of fiduciary duty liability damages under section 409 of ERISA, (ii) a civil liability under Section 409 penalty assessed pursuant to section 502(c), (i) or (l) of ERISA or Section 502(i(iii) of ERISA, or a tax imposed pursuant to section 4975 or 4976 Chapter 43 of Subtitle D of the Code Code, except where such damages, penalty or tax would not reasonably be expected to have a Material Adverse Effect.
(h) Except as set forth in Schedule 3.9(h) to the Disclosure Schedule, no Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees of the Company or its Subsidiaries 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 benefit plan," as that term is defined in section 3(2) of ERISA, (iii) deferred compensation benefits accrued as liabilities on the books of the Company or (iv) benefits the full cost of which is borne by the current or former employee (or his beneficiary).
(i) Each trust funding a Plan, which trust is intended to be exempt from federal income taxation pursuant to section 501(c)(9) of the Code, satisfies the requirements of such section and has received a favorable determination letter from the Internal Revenue Service regarding such exempt status.
(j) Except as disclosed in Schedule 3.9(j)(i) of the Disclosure Schedule, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not (1) require the Company or any of its Subsidiaries to make a larger contribution to, or pay greater benefits under, any Plan or (2) create or give rise to any additional vested rights or service credits under any Plan. Except as disclosed in Schedule 3.9(j)(ii) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to any agreement, nor has the Company or any of its Subsidiaries established any policy or practice, requiring any such liability entity to make a payment or tax that provide any other form of compensation or benefit to any person performing services for the Company or any of its Subsidiaries upon termination of such services which would notnot be payable or provided in the absence of the consummation of the transactions contemplated by this Agreement. In connection with the consummation of the transactions contemplated by this Agreement, individually no payments have or will be made hereunder, under the Plans, or under any other agreement (including, without limitation, the employment and severance agreements listed in Schedule 3.9(j)(iii) of the Disclosure Schedule) which, in the aggregate, have would result in impo- sition of the sanctions imposed under sections 280G and 4999 of the Code.
(k) Schedule 3.9(k)(i) of the Disclosure Schedule contains a true and complete list of each employment or severance agreement and, to the actual knowledge of the Management Committee and the General Counsel, each consulting agreement with an individual providing for payment obligations in excess of $350,000, pertaining to any employee of the Company Material Adverse Effector any of its Subsidiaries. The Company has heretofore delivered or made available to Purchaser a true and complete copy of each such employment and severance agreement. Schedule 3.9(k)(ii) of the Disclosure Schedule sets forth by number and employment classification the approximate numbers of employees employed by the Company and its Subsidiaries as of the date of this Agreement. None of said employees are subject to union or collective bargaining agreements with the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Destec Energy Inc), Merger Agreement (NGC Corp)
Employee Benefit Plans; ERISA. (a) Except as described in the Parent SEC Reports or as would not have a Material Adverse Effect on the Parent, (i) all Parent 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 Parent nor any of its Subsidiaries nor any ERISA Affiliate has any liabilities or obligations with respect to any such Parent Employee Benefit Plans, whether accrued, contingent or otherwise, nor to the best knowledge of the Parent, are any such liabilities or obligations expected to be incurred. Except as described in the Parent SEC Reports or as set forth in Section 4.8(a) of the Parent 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 Parent 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 policies applicable to the Parent or any of its Subsidiaries are the policies specifically described in Section 4.8(a) of the Parent Disclosure Schedule.
(b) With respect to each material bonusof its Plans, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company Parent has heretofore delivered or will after the date hereof make otherwise made available to Parent, upon request, true the Company complete and complete correct copies of each of the following documents:
, as applicable: (i) a copy of each Plan that is in writing (including all amendments thereto);
the Plan; (ii) a copy of the most recent annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
; (iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
actuarial report; (iv) if a copy of the most recent Summary Plan is funded through a trust or any other third party funding vehicle, Description and all material modifications; (v) a copy of the trust or other funding agreement agreement; and (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(vvi) the most recent determination letter received prior to the date hereof from the Internal Revenue Service IRS with respect to each Plan that is intended to qualify be qualified under section Section 401 of the CodeCode and all notices of reportable events received following receipt of such letter.
(bc) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary the Parent or any Company ERISA Affiliate within the past twelve years that has not been satisfied in full when duefull. To the best knowledge of the Parent, no condition exists that presents a material risk to the Parent, any of its Subsidiaries or any ERISA Affiliate of incurring a liability under such Title. The PBGC has not instituted proceedings to terminate any of the Plans, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under that such Title which will, individually or proceedings will be instituted. Except as otherwise disclosed in the aggregatedocuments delivered or otherwise made available pursuant to Section 4.8(b), have a Company Material Adverse Effect, or give rise with respect to a lien under each of the Plans that is subject to Title IV of ERISA.
(c) No Plan subject , 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 minimum funding requirements of section 412 then current value of the Code or section 302 assets of ERISA 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 Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the Plans ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) this Agreement. None of the Company Disclosure Letter, no Plan Plans is a "multiemployer pension plan," as such term is defined in section Section 3(37) of ERISA, nor . Each of the Plans that is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter is so qualified and the trusts maintained thereunder are exempt from taxation under Section 501(a) of the Internal Revenue Service Code. Except as to its qualification and, to Company's knowledgeset forth in Section 4.8(c) of the Parent Disclosure Schedule, no amendment has been made Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee employees after retirement or officer other termination of Company service (other than coverage mandated by applicable law or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policybenefits, the Company and full cost of which is borne by the Company Subsidiaries do not have any current liability under any such insurance policy or former employee). Except as set forth in Section 4.8(c) of the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability thatParent Disclosure Schedule, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There there are no pending or, to the Company's knowledge, or threatened claims by or on behalf of any of the PlansPlan, by any employee or beneficiary covered under any such Plan Plan, or otherwise involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(jd) Neither Company nor As used in this Agreement: "Parent Employee Benefit Plan" means any Company Subsidiary orPlan entered into, established, maintained, sponsored, contributed to or required to be contributed to by the Company's knowledge, any Company ERISA AffiliateParent, any of its Subsidiaries or ERISA Affiliates for the ERISA Plans, any trust created thereunder, benefit of the current or former employees or directors of the Parent or any trustee of its Subsidiaries and existing on the date of this Agreement or administrator thereof has engaged at any time subsequent thereto and on or prior to the Effective Time and, in the case of a transaction in connection with Plan which Company or any Company Subsidiary oris subject to ERISA, to Parent's knowledge, any Company ERISA Affiliate, any Section 412 of the ERISA Plans, any such trust Code or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) Title IV of ERISA, or a tax imposed pursuant to section 4975 or 4976 at any time during the twelve-year period preceding the date of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effectthis Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Alumax Inc), Merger Agreement (Aluminum Co of America)
Employee Benefit Plans; ERISA. (a) Xxxxxx Chartered has Previously Disclosed each material Xxxxxx Chartered Plan.
(b) With respect to each material bonusXxxxxx Chartered Plan, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company Xxxxxx Chartered has heretofore delivered or will after the date hereof make made available to Parent, upon request, Progressive true and complete copies of each of the following documents:
: (i1) a copy of each the Xxxxxx Chartered Plan that is in writing and related documents (including all amendments thereto);
; (ii2) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Descriptionannual reports, financial statements, and actuarial reports, if any; (3) the most recent summary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, ERISA with respect to such Xxxxxx Chartered Plan;
; and (iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v4) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Xxxxxx Chartered Plan that is intended to qualify be qualified under section 401 of the Code.
(bc) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary Xxxxxx Chartered or any Company ERISA Affiliate of Xxxxxx Chartered since the effective date of ERISA that has not been satisfied in full when duefull, and no condition exists that presents a material risk to Company Xxxxxx Chartered or any Company Subsidiary or any Company ERISA Affiliate of Xxxxxx Chartered of incurring a liability under such Title which will, individually or in Title. None of the aggregate, have a Company Material Adverse Effect, or give rise Xxxxxx Chartered Plans is subject to a lien under Title IV of ERISA.
(cd) No Plan subject Neither Xxxxxx Chartered nor any ERISA Affiliate of Xxxxxx Chartered, nor any of the Xxxxxx Chartered Plans, nor any trust created thereunder, nor, to the minimum funding requirements best knowledge of section Xxxxxx Chartered, any trustee or administrator thereof has engaged in a prohibited transaction (within the meaning of Section 406 of ERISA and Section 4975 of the Code) in connection with which Xxxxxx Chartered or any ERISA Affiliate of Xxxxxx Chartered could, either directly or indirectly, incur a material liability or cost.
(e) Full payment has been made, or will be made in accordance with Section 404(a)(6) of the Code, of all amounts that Xxxxxx Chartered or any ERISA Affiliate of Xxxxxx Chartered is required to pay under Section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to under the terms of any such Plan or otherwise) on or prior to the date hereof have been timely madeXxxxxx Chartered Plans.
(df) Except as set forth in Section 5.17(f) Previously Disclosed, none of the Company Disclosure Letter, no Plan Xxxxxx Chartered Plans is a "multiemployer pension plan," as such term is defined in section Section 3(37) of ERISA, nor a "multiple employer welfare arrangement," as such term is any Plan defined in Section 3(40) of ERISA, or a single employer plan described in 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.
(eg) Each A favorable determination letter has been issued by the Internal Revenue Service with respect to each Xxxxxx Chartered Plan that is intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter from to the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any effect that such plan is so qualified and each such Xxxxxx Chartered Plan since satisfies the date requirements of such letter Section 401(a) of the Code in all material respects. Each Xxxxxx Chartered Plan that is likely intended to result in satisfy the disqualification requirements of such Plan.
(fSection 125 or 501(c)(9) Each of the Plans Code satisfies such requirements in all material respects. Each Xxxxxx Chartered Plan has been operated and administered in all material respects in accordance with its terms and applicable laws, including, including but not limited to, to ERISA and the Code.
(h) There are no actions, except suits or claims pending, or, to the knowledge of Xxxxxx Chartered, threatened or anticipated (other than routine claims for benefits) against any failure Xxxxxx Chartered Plan, the assets of any Xxxxxx Chartered Plan or against Xxxxxx Chartered or any ERISA Affiliate of Xxxxxx Chartered with respect to so operate any Xxxxxx Chartered Plan. There is no judgment, decree, injunction, rule or administer such Plans that would notorder of any court, individually governmental body, commission, agency or arbitrator outstanding against or in the aggregatefavor of any Xxxxxx Chartered Plan or any fiduciary thereof (other than rules of general applicability). There are no pending or threatened audits, have a material adverse effect on examinations or investigations by any such governmental body, commission or agency involving any Xxxxxx Chartered Plan.
(gi) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and CompanyPreviously Disclosed, the consummation of the transactions contemplated by this Agreement will not
not (i) entitle any current or former employee or officer director of Company Xxxxxx Chartered or any Company Subsidiary ERISA Affiliate of Xxxxxx Chartered to severance pay, unemployment compensation or any other similar payment, or
or (ii) accelerate the time of payment or vesting, or increase the amount amount, of any compensation due to any such current or former employee or officer.
director, or (hiii) With respect to each Plan that is funded wholly renew or partially through an insurance policy, extend the Company and the Company Subsidiaries do not have term of any current liability under agreement regarding compensation for any such insurance policy in the nature of a retroactive rate adjustment current or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any former employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effectdirector.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Reorganization Agreement (Progressive Bank Inc), Reorganization Agreement (Hudson Chartered Bancorp Inc)
Employee Benefit Plans; ERISA. (a) With respect to Schedule 4.9(a) of the Parent Disclosure Schedules contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance stock appreciation right or other stock-based incentive, severance, change-in-control, or termination pay, hospitalization or other medical, disability, life or other insurance, supplemental unemployment benefits, profit-profit sharing, pension, or retirement plan, program, agreement or arrangement, arrangement and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans")arrangement, currently sponsored, maintained or contributed to or required to be contributed to by (i) CompanyParent or any of its Subsidiaries, (ii) any Company Subsidiary or (iii) by any trade or business, whether or not incorporated (a "Company Parent ERISA Affiliate"), that together with Company is Parent or any of its Subsidiaries would be deemed a "single employer" within the meaning of Section 4001 4001(b)(1) of ERISA, for the benefit of any employee current or former employee or director of CompanyParent, or any of its Subsidiaries or any Parent ERISA Affiliate (the "Parent Plans"). Schedule 4.9(a) of the Parent Disclosure Schedules identifies each of the Parent Plans that is an "employee welfare benefit plan," or "employee pension benefit plan" as such terms are defined in Sections 3(1) and 3(2) of ERISA (such plans being hereinafter referred to collectively as the "Parent ERISA Plans"). Except as required by applicable law, none of Parent, any Company Subsidiary of its Subsidiaries nor any Parent ERISA Affiliate has any formal plan or commitment, whether legally binding or not, to create any additional Parent Plan or modify or change any existing Parent Plan that would affect any current or former employee or director of Parent, any of its Subsidiaries or any Company Parent ERISA Affiliate.
(b) With respect to each of the Parent Plans, Company Parent has heretofore delivered or will after to the date hereof make available to Parent, upon request, Company true and complete copies of each of the following documents, as applicable:
(i) a copy of each the Parent Plan that is in writing documents (including all amendments thereto)) for each written Parent Plan or a written description of any Parent Plan that is not otherwise in writing;
(ii) a copy of the annual report and or Internal Revenue Service Form 5500 Series, if required under ERISA, with respect to each Parent ERISA Plan for the last three (3) Parent Plan years ending prior to the date of this Agreement for which such a report was required to be filed;
(iii) a copy of the actuarial report, if required under ERISA, with respect to each such Parent ERISA Plan for the last two plan three (3) Plan years ending prior to the date hereofof this Agreement;
(iiiiv) a copy of the most recent Parent Summary Plan DescriptionDescription ("Parent SPD"), together with each Summary all Summaries of Material ModificationsModification issued with respect to such Parent SPD, if required under ERISA, with respect to such each Parent ERISA Plan, and all other material employee communications relating to each Parent ERISA Plan;
(ivv) if the Parent Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof, if any;
(vi) all contracts relating to the Parent Plans with respect to the last reporting period ended immediately prior to the date hereofwhich Parent, any of its Subsidiaries or any Parent ERISA Affiliate may have any liability, including insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements; and
(vvii) the most recent determination letter received prior to the date hereof from the Internal Revenue Service IRS with respect to each Parent Plan that is intended to qualify be qualified under section 401 Section 401(a) of the Code.
(bc) No liability under Title IV of ERISA has been incurred by CompanyParent, any Company Subsidiary of its Subsidiaries or any Company Parent ERISA Affiliate since the effective date of ERISA that has not been satisfied in full when duefull, and no condition exists that presents a material risk to Company Parent, or any Company Subsidiary of its Subsidiaries or any Company ERISA Affiliate of incurring a any liability under such Title Title, other than liability for premiums due PBGC, which willpayments have been or will be made when due. To the extent this representation applies to Sections 4064, individually 4069 or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under 4204 of Title IV of ERISA, it is made not only with respect to the Parent ERISA Plans but also with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which Parent, any of its Subsidiaries or any Parent ERISA Affiliate made, or was required to make, contributions during the past six (6) years.
(cd) No Plan The PBGC has not instituted proceedings pursuant to Section 4042 of ERISA to terminate any of the Parent ERISA Plans subject to Title IV of ERISA, and no condition exists that presents a material risk that such proceedings will be instituted by the minimum PBGC.
(e) With respect to each Parent ERISA Plan that is subject to Title IV of ERISA, the present value of accumulated benefit obligations under such Parent ERISA Plan, as determined by the Parent ERISA Plan's actuary based upon the actuarial assumptions used for funding requirements purposes in the most recent actuarial report prepared by such Plan's actuary with respect to such Parent ERISA Plan, did not, as of section its latest valuation date, exceed then current value of the assets of such Plan allocable to such accumulated benefit obligations.
(f) None of Parent, any of its Subsidiaries, any Parent ERISA Affiliate, any of the Parent ERISA Plans, any trust created thereunder, nor to Parent's and the Purchaser's best knowledge, any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action 50 in connection with which Parent, any of its Subsidiaries or any Parent ERISA Affiliate could be subject to any material liability for either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Sections 4975(a) or (b), 4976 or 4980B of the Code.
(g) All contributions and premiums that Parent, any of its Subsidiaries or any Parent ERISA Affiliate is required to pay under the terms of each of the Parent ERISA Plans and Section 412 of the Code Code, have, to the extent due, been paid in full or section 302 properly recorded on the financial statements or records of Parent or its Subsidiaries, and none of the Parent ERISA Plans or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the Parent ERISA Plans ended prior to the date hereof; of this Agreement. No lien has been imposed under Section 412 (n) of the Code or Section 302 (f) of ERISA on the assets of Parent, any of its Subsidiaries or any Parent ERISA Affiliate, and all contributions required no event or circumstance has occurred that is reasonably likely to be made with respect thereto (whether pursuant to result in the terms imposition of any such Plan or otherwise) lien on or prior to the date hereof have been timely madeany such assets on account of any Parent ERISA Plan.
(dh) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no With respect to any Parent ERISA Plan that is a "multiemployer pension multi-employer plan," as such term is defined in section 3(37Section 3 (37) of ERISA, (i) neither Parent, any of its Subsidiaries nor is any Plan Parent ERISA Affiliate has, since September 26, 1980, made or suffered a plan described "complete withdrawal" or a "partial withdrawal," as such terms are respectively defined in Section 4063(a) Sections 4203 and 4205 of ERISA, (ii) no event has occurred that presents a material risk of a complete or partial withdrawal, (iii) none of Parent, any of its Subsidiaries or any Parent ERISA Affiliate has any contingent liability under Section 4204 of ERISA, (iv) no circumstances exist that present a material risk that any such multi-employer plan will go into reorganization, and (v) the aggregate withdrawal liability of Parent, each of its Subsidiaries and the Parent ERISA Affiliates, computed as if a complete withdrawal by Parent, each of its Subsidiaries and all of its Parent ERISA Affiliates had occurred under each such multi-employer plan on the date hereof, would be zero.
(ei) Each Plan of the Parent Plans has been operated and administered in all material respects in accordance with applicable laws, including but not limited to ERISA and the Code.
(j) Each of the Parent ERISA Plans that is intended to be "qualified" within the meaning of section 401(aSection 401 (a) of the Code is so qualified. Parent has applied for and received a favorable currently effective determination letter from the Internal Revenue Service as to its qualification andIRS stating that it is so qualified, to Company's knowledge, and no amendment event has been made to any occurred which would affect such Plan since the date of such letter that is likely to result in the disqualification of such Planqualified status.
(fk) Each of the Parent ERISA Plans has been operated that is intended to qualify under Section 501(c)(9) of the Code is so qualified and administered meets the requirements of Section 505(c) of the Code and the regulations thereunder.
(l) Except as set forth in all respects Schedule 4.9(l) of the Parent Disclosure Schedules, no amounts payable under any of the Parent Plans or any other contract, agreement or arrangement with respect to which Parent or any of its Subsidiaries may have any liability could fail to be deductible for federal income tax purposes by virtue of Section 162(m) or Section 280G of the Code.
(m) Except as set forth in accordance Schedule 4.9(m) of the Parent Disclosure Schedules, no Parent Plan provides death or medical benefits (whether or not insured), with respect to current or former employees of Parent, its Subsidiaries or any Parent ERISA Affiliate after retirement or other termination of service (other than (i) coverage mandated by applicable laws, including(ii) death benefits or retirement benefits under any "employee pension plan," as that term is defined in Section 3(2) of ERISA, but not limited to(iii) deferred compensation benefits accrued as liabilities on the books of Parent, any of its Subsidiaries or an Parent ERISA and Affiliate, or (iv) benefits, the Code, except for any failure to so operate full direct cost of which is borne by the current or administer such Plans that would not, individually former employee (or in the aggregate, have a material adverse effect on any such Planbeneficiary thereof)).
(gn) Except as expressly set forth in Schedule 4.9(n) of the Parent Disclosure Schedules and as provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and CompanySection 2.4 hereof, the consummation of the transactions contemplated by this Agreement will not
not (i) entitle any current or former employee employee, officer or officer director of Company Parent, any of its Subsidiaries or any Company Subsidiary Parent ERISA Affiliate to severance pay, unemployment compensation or any other similar termination payment, or
or (ii) accelerate the time of payment or vesting, or increase the amount of compensation or otherwise enhance any benefit due any such employee employee, officer or officerdirector.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(io) There are no pending or, to the Company's knowledgebest knowledge of Parent, threatened or anticipated claims by or on behalf of any of the Plans, Plan by any employee or beneficiary covered under any such Parent Plan or otherwise involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(jp) Neither Except as set forth in Schedule 3.9(p) of the Company nor any Company Subsidiary orDisclosure Schedules, no Plan is currently under examination by, and there are no issues related to the Company's knowledgePlans currently pending before, any Company ERISA Affiliatethe Internal Revenue Service, any Department of the ERISA PlansLabor, any trust created thereunder, Pension Benefit Guaranty Corporation or any trustee or administrator thereof has engaged in a transaction in connection court.
(q) There are no material liabilities under any foreign laws with which Company or any Company Subsidiary or, respect to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Acquisition Agreement (Intervoice Inc), Acquisition Agreement (Brite Voice Systems Inc)
Employee Benefit Plans; ERISA. (a) With respect Except for the profit-sharing, medical, health and severance plans set forth on Schedule 3.17, Seller does not maintain, administer or otherwise contribute to each material any Employee Benefit Plan, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject to any provision of ERISA and covers any employee, whether active or retired ("Employee Plans"). None of the Employee Plans set forth on Schedule 3.17 is a "multi-employer plan," as defined in Section 3(37) of ERISA, and Seller has not been obligated to make a contribution to any Employee Plan within the past five years on behalf of any employee. Except for those which will be terminated or canceled on or prior to the Closing, Seller does not maintain any form of current or deferred compensation (other than base salary and base wages), bonus, deferred compensation, incentive compensation, stock purchaseprofit sharing, stock option, stock appreciation right, severance or termination separation pay, hospitalization retirement, pension, salary continuation, group or other individual health, dental, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, survivor benefit or retirement similar plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) policy or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee employee, whether active or former employee retired, of Company, any Company Subsidiary class or any Company ERISA Affiliate, Company has heretofore delivered classes of its employees ("Benefit Arrangements"). The Stockholders have provided or will after the date hereof make available caused to Parent, upon request, true and complete copies of each of the following documents:
be provided to Buyer (i) a copy of each Employee Plan that is in writing and Benefit Arrangement, and a copy of each of the documents (including all amendments thereto);
trust agreements and other funding arrangements and summary plan descriptions) under which each such Employee Plan and Benefit Arrangement is operated; (ii) a copy of the most recent annual report and actuarial report, if any, required under ERISA, to be filed with the government or any agency thereof; (iii) with respect to each such Plan for any Employee Plans which are intended to be qualified under Section 401(a) of the last two plan years ending prior to the date hereof;
(iii) Code, a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as on the Plan's qualified status and a copy of the application for such letter; and (iv) a schedule showing either the annual cost or the current value of all benefits of each Employee Plan and Benefit Arrangement. With respect to its qualification all Employee Plans and Benefit Arrangements, Seller is in compliance in all material respects with the terms of each such plan or arrangement and, to Company's knowledgethe knowledge of Seller and the Stockholders, no amendment has been made to with the requirements prescribed by any such Plan since the date of such letter that is likely to result and all Laws as defined in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered Section 3.19 currently in all respects in accordance with applicable lawseffect, including, including but not limited to, to ERISA and the Code, applicable to such plans or arrangements. Since December 31, 1995, the Employee Plans and Benefit Arrangements have not been amended nor, except for pursuant to their terms as in effect on December 31, 1995, have any failure to so operate payments or administer contributions been made under such Plans that would notor Arrangements. Since December 31, individually 1995, Seller has not failed to make any contribution to, or in pay any amount due and owing as required by applicable law or by the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreementterms of, any exhibit hereto, a Employee Plan or as otherwise agreed Benefit Arrangement. The obligations of Seller with respect to any Employee Plan and Benefit Arrangement is fully funded. There is no pending or, to the knowledge of Seller or the Stockholders, threatened legal action, proceeding or investigation against Seller or any Employee Plan or Benefit Arrangement with respect to the employees of Seller, other than routine claims for benefits, which could result in writing by Parent liability to such plans of Seller. The execution of this Agreement and Company, the consummation of the transactions contemplated by this Agreement hereby will not
not result in any payment (iwhether of separation pay or otherwise) entitle becoming due from Seller to any current or former consultant or employee of Seller or officer of Company or any Company Subsidiary to severance payin the vesting, unemployment compensation or any other payment, or
(ii) accelerate the time acceleration of payment or vesting, or increase in the amount of compensation due any benefit payable to or in respect of any such current or former consultant or employee of Seller, or officerin the denial or reversal of any deductions taken by the Seller with respect to payments or distributions under such plan.
(hb) With respect to each Plan that is funded wholly or partially through an insurance policyThe Stockholders, the Company some of whom have been employees of WSB and the Company Subsidiaries do not participants of the ESOP Plan and Trust have any current liability under any such insurance policy represented and warranted to BBI in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior WSB Stock Agreement that the ESOP Plan and Trust has complied with all Laws, not limited to ERISA and the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created Code and regulations thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company its administration and operation, and the sale by the ESOP WSB Stockholder to BBI of the outstanding shares of capital stock of WSB. The Seller and Stockholder hereby represent and warrant that any failure, of the ESOP WSB Stockholder to so comply has not and will not result in any loss, liability, expense or claim against BBI or any Company Subsidiary orof its subsidiaries, to Parent's knowledge, any Company ERISA Affiliate, any of including the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectBuyer.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With Sellers have not entered into any collective bargaining agreement; there is no labor strike, dispute, slowdown or work stoppage or lockout pending, or, to the Knowledge of Sellers, threatened against or affecting Sellers; to the Knowledge of Sellers, no union organizational campaign is in progress with respect to the employees of Sellers; there is no unfair labor practice, charge or complaint pending or, to the Knowledge of Sellers, threatened, before the National Labor Relations Board against Sellers and no charges with respect to or relating to Sellers are pending before the Equal Employment Opportunity Commission.
(b) Schedule 6.13 contains a true and complete list of each material 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 "employee benefit plan, program, agreement or arrangement" as defined in Section 3(3) of ERISA, and each other employee benefit plan, welfare plan, program, agreement (including but not limited to employment agreements) agreement, policy or arrangement (the "Plans")arrangement, currently sponsored, maintained or contributed to or required to be contributed to by (i) CompanySellers or by any ERISA Affiliate that, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is Sellers would be deemed a "single employer" within the meaning of Section 4001 4001(a)(14) of ERISA, for within six years prior to the benefit of any employee or former employee of CompanyClosing Date (the "Sellers Benefit Plans").
(c) With respect to each Seller Benefit Plans, any Company Subsidiary or any Company ERISA Affiliate, Company has Sellers have heretofore delivered or will after to the date hereof make available to Parent, upon request, Buyer true and complete copies of each of the following documents:
(i) a copy of each the Plan that is in writing (documents, if any, including all amendments thereto);
, as currently constituted on the date hereof, (ii) a copy of the annual report reports and actuarial report, if required under ERISA, with respect to each such Plan reports for the last two three most recently completed plan years ending prior to the date hereof;
years, (iii) a copy of the most recent Summary Plan Description, together with each Description and Summary of Material Modifications, if required under ERISAapplicable, with respect to such Plan;
and all material employee communications for each plan, (iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (fund agreement, including all amendments thereto) , relating thereto as in effect on the date hereof and the latest financial statements thereof, (v) all Contracts relating to any Seller Benefit Plan with respect to which Sellers or any ERISA Affiliate may have any liability, and (vi) with respect to each Seller Benefit Plans that is intended to be qualified under Section 401 of the last reporting period ended immediately prior to the date hereof; and
(v) Code, the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect IRS.
(d) Neither Sellers nor any ERISA Affiliate has any formal plan or commitment, whether legally binding or not, to each create any additional Seller Benefit Plans or modify or change any existing Seller Benefit Plans, other than as required by the Code, ERISA or regulations or other requirements of the IRS or the Department of Labor issued thereunder.
(e) Except as set forth in Schedule 6.13, neither Seller nor any ERISA Affiliate maintains or contributes to or has ever maintained or contributed to any Seller Benefit Plan intended which is subject to qualify under section 401 Title IV of ERISA or Section 412 of the Code.
(bf) No liability under Title IV of ERISA has been incurred by Company, Neither Seller nor any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effectis, or give rise ever has been, obligated to a lien under Title IV of ERISA.
(c) No Plan make contributions to or is, or has ever been, other subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section Section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(eg) Each Plan intended To the Knowledge of Sellers, there has been no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, with respect to be "qualified" within the meaning of section 401(a) any Seller Benefit Plan, and Sellers have not incurred any liability for any excise tax pursuant to Section 4975 of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledgethe Knowledge of Sellers, no amendment has been made fact or event exists that would give rise to such liability with respect to the filing of reports with respect to any such Plan since the date of such letter that is likely to result in the disqualification of such Seller Benefit Plan.
(fh) Each Full payment has been made of amounts which Sellers or any ERISA Affiliate is required to pay to each Seller Benefit Plan through the Plans date hereof, and all amounts properly accrued through the Closing Date with respect to any Seller Benefit Plan have been properly recorded in the Sellers' Unaudited Financial Statements and will be properly recorded on any Financial Statements of Seller delivered pursuant to Section 8.8 hereof.
(i) To the Knowledge of Sellers, each Seller Benefit Plan has been operated and administered in all material respects in accordance with its terms and applicable lawsLaws. There are no pending and to the Knowledge of Sellers threatened or anticipated, including, but not limited to, ERISA and the Code, except claims with respect to any Seller Benefit Plan other than claims for any failure to so operate or administer such Plans that would not, individually or benefits made in the aggregateordinary course. To the Knowledge of Sellers, have a material adverse effect on each Seller Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code is so qualified and Sellers are not aware of any such Planfacts or circumstances to the contrary, other than as set forth in Schedule 6.13.
(gj) Except as expressly provided in this AgreementNo Seller Benefit Plan provides benefits with respect to current or former employees of Sellers or any ERISA Affiliate beyond their retirement or other termination of service, any exhibit hereto, a Plan or except as otherwise agreed required by Law, other than agreements with current or former employees as in writing by Parent and Companyeffect prior to December 31, 1996 consistent with past practice which in the aggregate are not material to the Condition of Sellers taken as a whole.
(k) With respect to each Seller Benefit Plan that is funded wholly or partially through an insurance policy, to the Knowledge of Sellers, there will be no material liability of Sellers or any ERISA Affiliate, as of the Closing Date, under any such insurance policy or ancillary agreement with respect to such insurance policy in the nature of a retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring prior to the Closing Date.
(l) The consummation of the transactions contemplated by this Agreement will not
not (i) entitle any current or former employee or officer of Company or any Company Subsidiary Sellers to severance pay, unemployment compensation (except for unemployment insurance benefits) or any other similar payment, or
(ii) accelerate the time of payment or vesting, vesting or increase the amount of compensation due any such employee or officer.
, (hiii) With respect to each Plan that is funded wholly result in any employment-related expense or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunderliabilities, or (iv) result in any trustee or administrator thereof has engaged prohibited transaction described in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 406 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effectfor which an exemption is not available.
Appears in 1 contract
Employee Benefit Plans; ERISA. (ai) With respect to Schedule 4.01(jj) hereto contains an accurate and complete description of, and sets forth the annual expense based on the accrual method for the fiscal years ended December 31, 1993, 1994 and 1995 under, each material employment, consulting, bonus, deferred compensation, incentive compensation, severance or termination pay, disability hospitalization or other medical, dental, vision, life or other insurance, stock purchase, stock option, severance or termination paystock appreciation, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharingstock award, pension, profit sharing, 401(k) or retirement plan, program, agreement or arrangement, and each other employee benefit planplan or arrangement, programwhether formal or informal, agreement written or oral, tax-qualified under the Code or non-qualified, whether covered by the Employee Retirement Income Security Act of 1974, as amended (including but not limited "ERISA"), or not, maintained or contributed to employment agreements) by Holdings and/or the Company covering its employees, former employees, retirees or arrangement sales personnel (the collectively, "Plans"). In addition, currently Schedule 4.01(jj) hereto contains an accurate and complete description of any amounts payable, or which will become payable, under any former pension, profit sharing, 401(k) or retirement plan, agreement or arrangement, to any participant, beneficiary or any other third party. Any Plan maintained by Holdings and/or the Company that has subsequently been terminated, was terminated in compliance with the requirements of the Code and ERISA and the liabilities under such plan were fully satisfied. Neither Holdings nor the Company has any formal plan or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or businesscommitment, whether covered by ERISA or not incorporated (a "Company ERISA Affiliate")not, to create any additional plan, agreement or arrangement or to modify or change any existing Plan that together with Company is a "single employer" within the meaning would affect any of Section 4001 of ERISAits employees, for the benefit of any employee former employees, retirees or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, sales personnel. The Company has heretofore delivered or will after the date hereof make available to Parent, upon request, Buyer true and complete copies of each the Plans, the trusts and other contracts (including any amendments to any of the following documents:
(iforegoing) a copy of each Plan that is relating to the Plans and all other relevant documents governing or relating to the Plans in writing effect on the date hereof (including all amendments thereto);
(ii) a copy of without limitation, the latest summary plan description, the latest annual report (and actuarial report, if required under ERISA, all attachments) filed with the Internal Revenue Service ("IRS") with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan DescriptionPlans, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent favorable determination letter received prior to issued by the date hereof from the Internal Revenue Service with respect to IRS for each Plan intended to qualify under section 401 of the CodePlans as applicable).
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(dii) Except as set forth on Schedule 4.01(jj) hereto, the Company does not maintain, nor has it maintained since 1987, any "employee pension benefit plan", as such term is defined in Section 5.17(f3(2) of the ERISA, and the rules and regulations promulgated thereunder, covering its employees, former employees or retirees, including but not limited to, any non-qualified retirement or deferred compensation plan. The Company Disclosure Letterdoes not maintain, no Plan is nor has it maintained or contributed to, a "multiemployer pension plan," ", as that term is defined in section Section 3(37) of ERISA, nor since 1991. The Company is not currently responsible for any Plan a plan described "withdrawal liability" as that term is defined in Section 4063(a) 4201 of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made ERISA with respect to any such Plan since the date multi- employer plan. None of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and CompanyHoldings, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction involving any of the Plans in connection with which Company or any Company Subsidiary orHoldings, to Parent's knowledgethe Company, any Company ERISA Affiliate, Subsidiary or any of the ERISA Plans, any such trust trust, or any trustee or administrator thereof, or any other party dealing with the ERISA Plans or any such trust is likely to trust, could be subject to either a civil liability under Section 409 of ERISA or penalty assessed pursuant to Section 502(i) of ERISA, or a tax imposed pursuant by Section 4975 of the Code.
(iii) Full payment has been made of all amounts which the Company is required to section 4975 or 4976 pay under the terms of the Plans as a contribution to such Plans as of the last day of the most recent fiscal year of each of the Plans ended prior to the date of this Agreement.
(iv) Each of the Plans is and has been operated and administered in all material respects in accordance with applicable laws, including but not limited to, ERISA and the Code. Except as set forth on Schedule 4.01(jj) hereto, each Plan subject to Section 401(a) of the Code has received a favorable determination from the IRS that the Plan satisfies the requirements of Section 401(a) of the Code for the Plan to be tax-qualified, and no facts exist which could reasonably be expected to adversely affect the tax-qualified status of any such Plan.
(v) There are no pending, or to the best knowledge of Holdings, the Company and the Principal Managers, threatened or anticipated claims, litigation, administrative actions or proceedings against or otherwise involving any of the Plans or related trusts, or any fiduciary thereof, by or on behalf of the Plans by any employee or beneficiary covered under the Plans, or otherwise involving the Plans (other than routine claims for benefits). There is no judgment, decree, injunction, rule or order of any such liability court, governmental body, commission, agency or tax arbitrator outstanding against or in favor of any Plan or any fiduciary thereof in that would capacity. The assets of the Company and its Subsidiaries are not, individually and will not, either as a result of any circumstances existing prior to the Closing Date or as a result of the consummation of the transactions contemplated by this Agreement, be subject to any claims under any Plan maintained by Holdings, the Company or any Subsidiary or in which employees, former employees or retirees of Holdings, the aggregateCompany or any Subsidiary participate.
(vi) Except as set forth in Schedule 4.01(jj) hereto, have a each Plan that is an employee welfare benefit plan providing health benefits to retirees may be terminated at any time after the Closing Date without liability to the Company Material Adverse Effector its Subsidiaries other than liabilities relating to claims incurred prior to the effective date of the termination of such Plan.
(vii) Neither Holdings nor the Company has engaged in any transaction, failed to make any required contribution, committed any act or omission or otherwise incurred any liability for any excise tax under Sections 4971 through 4980B of the Code, inclusive.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to Section 3.11(a) of the Company Disclosure Schedule contains a true and complete list of each material employment, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (collectively, the "“Benefit Plans"), ”) currently maintained or contributed to or required to be contributed to by (i) the Company, (ii) any Company Subsidiary Subsidiary, or (iii) any trade or business, whether or not incorporated (a "Company an “ERISA Affiliate"”), that together with the Company is or any Company Subsidiary would be deemed a "“single employer" ” within the meaning of Section section 4001 of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder (“ERISA”), for the benefit of any employee current or former employee or Director of Company, any the Company Subsidiary or any Company ERISA AffiliateSubsidiary.
(b) With respect to each of the Benefit Plans, the Company has heretofore delivered or will after made available in the date hereof make available Data Room to Parent, upon request, true and Parent complete copies of each of the following documents:
: (i) a copy of each the Benefit Plan that is in writing (including all amendments thereto);
; (ii) a copy of the annual report and actuarial report, if required under ERISAERISA or the Code, with respect to each such Plan for the last two three plan years ending prior to the date hereof;
; (iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
; (iv) if the Benefit Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to most recently preceding the date hereofthereof; and
(v) all contracts with respect to which the Company, any Company Subsidiary or any ERISA Affiliate may have any liability, including insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements; and (vi) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Benefit Plan that is intended to qualify be qualified under section 401 Section 401(a) of the Code.
(bc) No liability under Neither the Company, any Company Subsidiary, nor any ERISA Affiliate maintains or contributes to or ever maintained was required to contribute to (i) any plan or arrangement that is or was subject to Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section Section 412 of the Code), whether or not waived, as (ii) any plan or arrangement that is or was a multiemployer plan within the meaning of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan Section 3(40) or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a4001(a)(3) of ERISA.
(ed) Each Benefit Plan intended to be "“qualified" ” within the meaning of section Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to the Company's knowledge’s Knowledge, no amendment event has been made to any such Plan since the date of such letter occurred that is likely could reasonably be expected to result in the disqualification of such Benefit Plan.
(fe) Each of the Benefit Plans has been operated and administered in all material respects in accordance with its terms and in all material respects in accordance with applicable laws, including, but not limited to, including ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(gf) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Companyset forth on Section 3.11(f) of the Company Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will not
not (i) entitle any current or former employee or officer Director of the Company or any Company Subsidiary 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 current or former employee or officerDirector, or (iii) result in any prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available.
(hg) With respect to each Benefit Plan that is funded wholly or partially through an insurance policy, neither the Company and the nor any Company Subsidiaries do not have Subsidiary has any current liability under any such insurance policy in the nature of a retroactive rate adjustment or adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable PlanClosing.
(ih) There are no pending or, to the Company's knowledge’s Knowledge, threatened claims by or on behalf of any of the Benefit Plans, by any employee or beneficiary covered under any such Benefit Plan or otherwise involving any such Benefit Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(ji) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company Subsidiary, ERISA Affiliate, any of the ERISA PlansBenefit Plan, any trust created thereunder, or nor any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, that could reasonably be expected to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely give rise to be subject to either a civil liability under either Section 409 of ERISA or Section section 502(i) of ERISA, ERISA or a tax imposed pursuant to section Section 4975 or 4976 of the Code other than Code.
(j) Except as contemplated by this Agreement, neither the Company nor any such liability Company Subsidiary has any formal plan or tax commitment, whether legally binding or not, to create any additional Benefit Plan or modify or change any existing Benefit Plan that would notaffect any employee or terminated employee of the Company or any Company Subsidiary.
(k) Except as set forth on Section 3.11(k)(i) of the Company Disclosure Schedule, individually neither the Company nor any Company Subsidiary is a party to any agreement, contract or arrangement that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code or in respect of which a deduction has been or could be disallowed pursuant to Section 162(m) of the Code. Except as set forth on Section 3.11(k)(ii) of the Company Disclosure Schedule, no current or former employee or Director of the Company or any Company Subsidiary is entitled to receive any additional payment from the Company or any Company Subsidiary or the Surviving Corporation by reason of the excise tax required by Section 4999(a) of the Code being imposed on such Person by reason of the transactions contemplated by this Agreement.
(l) Except as set forth on Section 3.11(l) of the Company Disclosure Schedule, no “leased employees,” as that term is defined in Section 414(n) of the Code, perform services for the Company, any Company Subsidiary or any ERISA Affiliate. Except as set forth on Section 3.11(l) of the Company Disclosure Schedule, neither the Company, any Company Subsidiary or any ERISA Affiliate has used the services or workers provided by third party contract labor suppliers, temporary employees, such “leased employees,” or individuals who have provided services as independent contractors to an extent that would reasonably be expected to result in the disqualification of any Benefit Plan or the imposition of penalties or excise taxes with respect to any Plan by the Internal Revenue Service, the Department of Labor, or any other Governmental Entity.
(m) Neither the Company, any Company Subsidiary nor any ERISA Affiliate is a party to any agreement or understanding, whether written or unwritten, with the Internal Revenue Service, the Department of Labor or the Pension Benefit Guaranty Corporation.
(n) Except as contemplated by this Agreement with respect to matters addressed in Section 2.5 hereof, no representations or communications, oral or written, with respect to the participation, eligibility for benefits, vesting, benefit accrual or coverage under any Benefit Plan have been made to employees, Directors or agents (or any of their representatives or beneficiaries) of the Company, any Company Subsidiary or any ERISA Affiliate that are not in accordance with the terms and conditions of the Benefit Plans.
(o) Except as set forth on Section 3.11(o) of the Company Disclosure Schedule, no Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees or Directors of the Company or any Company Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable law, (ii) death benefits or retirement benefits under any “employee pension benefit plan” (as defined in section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of the Company or a Company Material Adverse EffectSubsidiary, or (iv) benefits the full costs of which are borne by the current or former employee or Director or his or her beneficiary. Except as set forth on Section 3.11(o) of the Company Disclosure Schedule, the Company has no retiree medical benefits.
(p) With respect to each of Benefit Plan, the provisions of Section 4980B(f) of the Code, Section 601 et seq. of ERISA, and any similar local law have been complied with in all material respects.
(q) With respect to each Benefit Plan established or maintained outside of the United States of America primarily for the benefit of employees of the Company or any Company Subsidiary residing outside the United States of America (a “Foreign Benefit Plan”): (i) except as set forth on Section 3.11(q)(i) of the Company Disclosure Schedule, all employer and employee contributions to each Foreign Benefit Plan required by law or by the terms of such Foreign Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign Benefit Plan, the liability of each insurer for any Foreign Benefit Plan funded through insurance or the book reserve established for any Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Benefit Plan and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
(r) No present or former employee of the Company or any of its subsidiaries has a vested right to any “welfare benefits” (as defined in ERISA) under any Benefit Plan.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to Set forth on Schedule 3.13
(a) is a true and complete list of each material bonusBenefit Plan sponsored, 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, pensionmaintained, or retirement plancontributed to, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Companythe Parent or any Parent Subsidiary, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee in which present or former employee employees of Company, any Company Subsidiary the Parent or any Company ERISA AffiliateParent Subsidiary participate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for which the last two plan years ending prior to the date hereof;
(iii) a copy Parent or any of the most recent Summary Plan DescriptionParent Subsidiaries has any liability, together with each Summary of Material Modificationswhether direct or indirect, if required under ERISAactual or contingent, with respect to such Plan;
(iv) if the Plan is funded through a trust whether formal or any other third party funding vehicleinformal, a copy of the trust and whether legally binding or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Codenot.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
Except as disclosed on Schedule 3.13(b): (cA) No Plan subject to the minimum funding requirements of section 412 each of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined Parent's Benefit Plans and each Parent Subsidiary's Benefit Plans have been maintained and are in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made compliance with respect thereto (whether pursuant to the terms of any such Plan or otherwiseBenefit Plans and all Applicable Laws, including, without limitation, the Code and ERISA; (B) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) each of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan Parent's Benefit Plans and each Parent Subsidiary's Benefit Plans intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter from have been determined by the Internal Revenue Service as IRS to its qualification be so qualified and, to Company's knowledgethe Knowledge of the Parent, and the Parent Subsidiaries, no amendment event or circumstance has been made to any such Plan occurred since the date of such letter determination which would jeopardize the qualification of any of the Parent's Benefit Plans or any Parent Subsidiary's Benefit Plans; and (C) none of the Parent's Benefit Plans or Parent Subsidiary's Benefit Plans is subject to Title IV of ERISA.
(c) Neither the Parent nor any Parent Subsidiary has ever maintained, established, sponsored, participated in, or contributed to, any Pension Plan subject to Part 3 Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(d) Neither the Parent nor any Parent Subsidiary has ever maintained, established, sponsored, participated in or contributed to any self-insured "group health plan" (within the meaning of Section 5000(b)(i) of the Code) that is likely provides benefits to result employees (other than medical flexible spending account, health reimbursement arrangement or similar program, including any such plan pursuant to which a stop-loss policy or contract applies).
(e) Neither the Parent nor any Parent Subsidiary has ever contributed to or been obligated to contribute to any multiemployer plan (as defined in Section 3(37) of ERISA). Neither the disqualification Parent nor any Parent Subsidiary has ever maintained, established, sponsored, participated in or contributed to any multiple employer plan or to any plan described in Section 413 of such Planthe Code.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable lawsNo Parent Benefit Plan provides, includingor reflects or represents any liability to provide, but not limited topost-termination or retiree life insurance, ERISA and the Codehealth or other employee welfare benefits to any person for any reason, except for as may be required by COBRA or other Applicable Law, and neither the Parent nor any failure Parent Subsidiary has ever represented, promised, or contracted (whether orally or in writing) to so operate or administer such Plans that would not, any employee (either individually or in the aggregateto employees as a group) or any other person that such employee(s) or other persons would be provided with life insurance, have a material adverse effect on any such Planhealth or other employee benefits after termination or retirement, except as required by statute.
(g) Schedule 3.13(g) sets forth a complete and accurate list of each employee of the Parent and each Parent Subsidiary, 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, the date of their last increase in compensation and any other benefits or amounts accrued by or owed to such employee, including without limitation any vacation days, sick days or holidays. To the Parent's Knowledge, no such employee intends to terminate his or her employment with the Parent for any reason. Schedule 3.13(g) also sets forth a complete and accurate list of each independent contractor or consultant engaged by the Parent or any Parent Subsidiary, including such contractor's or consultant's manner and amount of compensation, date of retention and the date of the last increase in such compensation.
(h) Except as expressly provided in set forth on Schedule 3.13(h), neither the execution and delivery of this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, Agreement nor the consummation of the transactions contemplated by this Agreement will not
hereby 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 Company the Parent or any Company Subsidiary to severance payParent Subsidiary, unemployment compensation or any other payment, or
(ii) accelerate result in any forgiveness of indebtedness owed or payable by any employee or former employee to the Parent, (iii) materially increase any benefits otherwise payable by the Parent or any Parent Subsidiary, or (iv) result in the acceleration of the time of payment or vesting, or increase the amount vesting of compensation due any such employee or officer.
(hbenefits, except as required under Section 411(d)(3) With respect to each Plan that is funded wholly or partially through an insurance policy, of the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable PlanCode.
(i) There are Except as set forth on Schedule 3.13(i), there is no pending oragreement, plan, arrangement or other contract covering any employee that, considered individually or considered 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 Company's knowledge, threatened claims by or on behalf payment of any amount that would be characterized as a "parachute payment" within the meaning of Section 280G(b)(1) of the PlansCode. There is no agreement, plan, contract or other arrangement by which the Parent or any Parent Subsidiary is or was bound to compensate any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, excise taxes paid pursuant to the Company's knowledge, any Company ERISA Affiliate, any Section 4999 of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any Code. Section 3.14(i) lists all persons that the Parent reasonably believes are "disqualified persons" (within the meaning of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 280G of the Code other than any such liability or tax that would not, individually or in and the aggregate, have a Company Material Adverse Effectregulations promulgated thereunder) as determined as of the date hereof.
Appears in 1 contract
Samples: Share Exchange Agreement (Somanta Pharmaceuticals Inc.)
Employee Benefit Plans; ERISA. (a) With respect to each material 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, agreement or arrangement, Schedule 4.9 contains an accurate and each other complete list of all "employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer," within the meaning of Section 3(3) of ERISA and any other bonus, profit sharing, pension, severance, savings, deferred compensation, fringe benefits, insurance, welfare, health, post-retirement benefit, life, stock option, disability, accident, sick pay, vacation, individual employment, consulting, incentive, change in control, or other plan, agreement, policy, trust fund, or arrangement (whether written or unwritten, insured or self-insured):
(i) established, maintained, sponsored, or contributed to (or with respect to which any obligation to contribute has been undertaken) within the last six years by Oakridge, the Oakridge Subsidiaries or any entity that would be deemed a "single employer" with Oakridge under Section 414(b), (c), (m), or (o) of the Code or Section 4001 of ERISA, for the benefit ERISA (an "ERISA Affiliate") on behalf of any employee employee, director, or former employee consultant of CompanyOakridge or an Oakridge Subsidiary (whether current, any Company Subsidiary former, or retired) or their beneficiaries or
(ii) with respect to which Oakridge, the Oakridge Subsidiaries or any Company ERISA AffiliateAffiliate has or has within the last six years had any obligation on behalf of any such employee, Company has heretofore delivered director, consultant or will after beneficiary of Seal or a Seal Subsidiary (each an "Oakridge Plan" and, collectively, the date hereof make available to Parent, upon request, true "Oakridge Plans"). True and complete copies of each of the following documents:
(i) a copy of each Plan that Oakridge Plans which is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section Section 401 (a) of the Code and each other Oakridge Plan which Oakridge, the Oakridge Subsidiaries or any ERISA Affiliate has or could reasonably be expected to have a current or future actual or potential liability, and the material documents relating thereto (including, without limitation, any summary plan description, annual reports, and communications from the IRS or any other government entity) have been provided to Seal. None of the Oakridge Plans is (A) a "multi-employer plan," as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code, (B) otherwise subject to Title IV of ERISA or (C) subject to Section 412 of the Code. With respect to each employee pension benefit plan subject to Title IV of ERISA or Section 412 of the Code (other than the Oakridge Plans) maintained or contributed to by an ERISA Affiliate, (A) there is no actual or contingent material liability of Oakridge or any Oakridge Subsidiary under Title IV of ERISA or Section 412 of the Code to such plan, the Pension Benefit Guaranty Corporation or other governmental authority and (B) the assets of Oakridge or any Oakridge Subsidiary have not been subject to a lien under ERISA or the Code.
(b) No liability under Title IV Except where failures to comply with each of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that the following representations has not been satisfied in full when due, and no condition exists that presents a material risk or could not reasonably be expected to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which willresult, individually or and in the aggregate, have a Company in an Oakridge Material Adverse Effect, with respect to each of the Oakridge Plans on Schedule 4.9:
(i) except as set forth on Schedule 4.9, each Oakridge Plan intended to qualify under Section 401(a) of the Code is qualified and has received a determination letter under Revenue Procedure 93B39 or give rise subsequent IRS guidance to a lien the effect that the Oakridge Plan is qualified under Title IV Section 401 of the Code and any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of the Code and nothing has occurred or is expected to occur through the date of the Closing that caused or could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any penalty or tax liability;
(ii) all payments required by any Oakridge Plan, any collective bargaining agreement or other agreement, or by law (including, without limitation, all contributions, insurance premiums, or inter-company charges) with respect to all periods through the date of the Closing shall have been made prior to the Closing or accrued on the Oakridge Financial Statements in accordance with GAAP;
(iii) no claim, lawsuit, arbitration or other action has been threatened, asserted, instituted, or anticipated against the Oakridge Plans, any trustee or fiduciaries thereof, Oakridge, any Oakridge Subsidiary, any ERISA Affiliate, any director, officer, or employee thereof, or any of the assets of any trust of the Oakridge Plans;
(iv) the Oakridge Plan has been maintained and administered at all times in compliance with its terms and all applicable laws, rules and regulations, including, without limitation, ERISA and the Code;
(v) no "prohibited transaction," within the meaning of Section 4975 of the Code and Section 406 of ERISA, has occurred or is expected to occur with respect to the Oakridge Plan;
(vi) no Oakridge Plan is or is expected to be under audit or investigation by the IRS, Department of Labor, or any other governmental authority and no such completed audit, if any, has resulted in the imposition of any tax or penalty; and
(vii) with respect to each Oakridge Plan that is funded mostly or partially through an insurance policy, none of Oakridge, Oakridge Subsidiaries or any ERISA Affiliate has any liability in the nature of retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring on or before the Closing.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the The consummation of the transactions contemplated by this Agreement will not
(i) entitle not give rise to any current or former employee or officer of Company or any Company Subsidiary to material liability, including, without limitation, liability for severance pay, unemployment compensation compensation, termination pay, or any other paymentwithdrawal liability, or
(ii) or accelerate the time of payment or vesting, vesting or increase the amount of compensation or benefits due to any employee, director, shareholder, or beneficiary of Oakridge or any Oakridge Subsidiary (whether current, former, or retired) or their beneficiaries solely by reason of such employee transactions. No amounts payable under any Oakridge Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G or officer.
162(m) of the Code. None of Oakridge, any Oakridge Subsidiary or any ERISA Affiliate maintains, contributes to, or in any way provides for any benefits of any kind whatsoever (hother than under Section 4980B of the Code, the Federal Social Security Act, or a plan qualified under Section 401(a) With respect of the Code) to each any current or future retiree or terminee. None of Oakridge, any Oakridge Subsidiary or any ERISA Affiliate has any unfunded liabilities pursuant to any Oakridge Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability intended to be qualified under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(iSection 401(a) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse EffectCode.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Exchange (Seal Holdings Corp)
Employee Benefit Plans; ERISA. Except as set forth on Schedule 3.2(l) of the Parent Disclosure Schedule or in the Parent SEC Documents: 42
(ai) With respect There are no Parent Employee Benefit Plans established, maintained, contributed to each material or required to be contributed to, by Parent or any entity with which Parent is considered a single employer under Section 414(b), (c), (m) or (o) of the Code ("Parent ERISA Affiliates") or which Parent or any Parent ERISA Affiliate has established, maintained, contributed to, or been required to contribute to, within six years prior to the Effective Time. As used in this Agreement, "Parent Employee Benefit Plan" means any plan, program, policy, practice, agreement or other arrangement providing compensation or benefits in any form to any current or former employee, independent contractor, officer or director of Parent or any Subsidiaries of Parent or any beneficiary or dependent thereof, whether written or unwritten, formal or informal, including without limitation any "employee welfare benefit plan" within the meaning of Section 3(1) of ERISA ("Parent Employee Welfare Benefit Plan"), any "employee pension benefit plan" within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) ("Parent Employee Pension Benefit Plan") and any other pension, profit-sharing, bonus, incentive compensation, deferred compensation, incentive compensationvacation, sick pay, stock purchase, stock option, severance or termination payphantom equity, equity compensation, severance, employment, consulting, unemployment, hospitalization or other medical, life life, or other insurance, supplemental unemployment benefitslong- or short-term disability, profit-sharingchange of control, pensionfringe benefit, or retirement any other plan, program, agreement program or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);policy.
(ii) With respect to each Parent Employee Benefit Plan, Parent has provided Company with a true, correct and complete copy of: (A) each writing constituting a part of such Parent Employee Benefit Plan (including, but not limited to, the annual report plan document(s), adoption agreement, prototype or volume submitter documents, trust agreement, annuity contract, third party administrative contracts, and actuarial reportinsurance contracts) and all amendments thereto; (B) the three most recent Annual Reports (Form 5500 Series) including all applicable schedules, if required; (C) the current summary plan description and any material modifications thereto, if required to be furnished under ERISA, or any written summary provided to participants with respect to each such Plan any plan for the last two which no summary plan years ending prior to the date hereof;
description exists; (iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(vD) the most recent determination letter received prior to the date hereof (or if applicable, advisory or opinion letter) from the Internal Revenue Service IRS, if any, or if an application for a determination letter is pending, the application with respect all attachments; (E) all notices given to such Parent Employee Benefit Plan, Parent, or any Parent ERISA Affiliate by the IRS, Department of Labor, Pension Benefit Guaranty Corporation, or other governmental agency relating to such Parent Employee Benefit Plan; and (F) a written description of each Plan intended to qualify under section 401 of the Codeoral Company Employee Benefit Plan.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(eiii) Each Parent Employee Benefit Plan that is intended to be "qualified" within the meaning of section Section 401(a) of the Code and, to the extent applicable, Section 401(k) of the Code ("Qualified Parent Employee Benefit Plan"), has received a favorable determination letter from the Internal Revenue Service IRS that has not been revoked, and no event has occurred and no condition exists that could reasonably be expected to adversely affect the qualified status of any such Parent Employee Benefit Plan. Any favorable determination letters referenced in this Section 3.2(l)(iii) cover "GUST" as defined in footnote 2 of IRS Notice 2003-49. Each Qualified Parent Employee Benefit Plan has timely made "good faith" amendments to its qualification andcomply with the Economic Growth and Tax Reconciliation Relief Act of 2001 as required by IRS Notice 2001-42. The trusts established under the Qualified Parent Employee Benefit Plans are exempt from federal income taxes under Section 501(a) of the Code and any potential excise taxes. 43
(iv) Parent has (A) filed or caused to be filed all returns and reports on the Parent Employee Benefit Plans that are required to be filed and (B) paid or made adequate provision for all fees, interest, penalties, assessments or deficiencies that have become due pursuant to Company's knowledge, no amendment those returns or reports or pursuant to any assessment or adjustment that has been made relating to those returns or reports. All other material fees, interest, penalties and assessments that are payable by or for Parent and its Subsidiaries relating to the Company Employee Benefit Plans have been timely reported, fully paid and discharged. There are no material unpaid fees, penalties, interest or assessments due from Parent or, to the knowledge of Parent, from any other person or entity, relative to any such Plan since Parent Employee Benefit Plan. Parent and its Subsidiaries have collected or withheld all amounts that are required to be collected or withheld by them to discharge their obligations with respect to the date Parent Employee Benefit Plans, and all of such letter that is likely those amounts have been paid to result the appropriate governmental authority or set aside in the disqualification of such Planappropriate accounts for future payment when due.
(fv) The funding, if any, under each Parent Employee Welfare Benefit Plan does not exceed and has not exceeded the limitations under Sections 419A(b) and 419A(c) of the Code. Parent and its Subsidiaries are not subject to taxation on the income of any Parent Employee Welfare Benefit Plan's welfare benefit fund (as such term is defined in Section 419(e) of the Code) under Section 419A(g) of the Code. All Parent Welfare Employee Benefit Plans required to comply with the COBRA provisions of ERISA and the Code have complied with such requirements in all material respects.
(vi) Each of the Plans Parent Employee Benefit Plan has been operated and administered in all material respects in accordance with its provisions. All contributions required to be made to any Parent Employee Benefit Plan (or to any person pursuant to the terms thereof) have been timely made or the amount of such payment or contribution obligation has been reflected in the Parent SEC Documents which are publicly available prior to the date of this Agreement. All such contributions representing participant contributions have been made within the time required by Department of Labor regulation section 2510.3-102.
(vii) Parent and its Subsidiaries have complied, and are now in compliance, in all material respects, with all provisions of ERISA, the Code and all laws and regulations applicable lawsto the Parent Employee Benefit Plans. Neither Parent nor any of its Subsidiaries has engaged in any prohibited transaction, includingwithin the meaning of Section 4975 of the Code or Section 406 of ERISA, but not limited toas a fiduciary or party in interest with respect to any Parent Employee Benefit Plan which could reasonably be expected to result in any material liability to Parent or any of its Subsidiaries, ERISA and, to the knowledge of the Parent or any of its Subsidiaries, (A) no prohibited transaction has occurred with respect to any Parent Employee Benefit Plan and the Code, except (B) no fiduciary has any liability for breach of fiduciary duty or any other failure to so operate act or administer such Plans that would not, individually comply in connection with the administration or in the aggregate, have a material adverse effect on investment of assets of any such Parent Employee Benefit Plan.
(gviii) Except as expressly provided in this AgreementNeither Parent nor any entity that is, or within the preceding six years has been, a Parent ERISA Affiliate has ever established, maintained, contributed to, or had an obligation to contribute to, any exhibit heretoemployee benefit plan that is a "multiemployer plan," as that term is defined in Section 3(37) of ERISA, or that is subject to Title IV of ERISA, and no liability under Title IV of ERISA (including a Plan liability to pay premiums to the Pension Benefit 44 Guaranty Corporation) has been or as otherwise agreed in writing is expected to be incurred by Parent or any of its Subsidiaries. No Parent Employee Welfare Plan is a multiple employee welfare arrangement as defined in Section 3(40) of ERISA.
(ix) Parent and Companyits Subsidiaries have not offered to provide life, health or medical benefits or insurance coverage to any individual, or to the family members of any individual, for any period extending beyond the termination of the individual's employment, except to the extent required by the COBRA provisions in ERISA and the Code or similar provisions of state law.
(x) The consummation of the transactions contemplated by this Agreement will not
, either alone or in connection with termination of employment, (iA) entitle any current or former employee employee, independent contractor, director, or officer of Company Parent or any Company Subsidiary its Subsidiaries to severance pay, unemployment compensation any change in control payment, or any other material payment, or
except as expressly provided in this Agreement, (iiB) accelerate the time of payment or vesting, change the form or method of payment, or increase the amount of compensation due due, any such employee employee, independent contractor, director, or officer, or (C) entitle any such employee, independent contractor, director or officer to any gross-up or similar material payment in respect of the excise tax described in Section 4999 of the Code. Neither Parent nor any Subsidiary of Parent has taken any action that would result in its incurring any obligation for any payments or benefits described in subsections (A), (B) or (C) of this Section 3.2(l)(x) (without regard to whether the transactions contemplated by this Agreement are consummated) except to the extent required in a written contract or agreement in existence as of the date of this Agreement.
(hxi) With respect to each Plan that is funded wholly or partially through an insurance policyAs of the date of this Agreement, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There there are no suits, actions, proceedings, investigations, claims, or orders pending or, to the Company's knowledgeknowledge of the Parent, threatened claims by against the Parent, any Subsidiary of Parent, or on behalf of any of the Plans, by Parent Employee Benefit Plan related to any employee or beneficiary covered under any such Plan involving any such Parent Employee Benefit Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregateordinary course of business). As of the date of this Agreement, have a Company Material Adverse Effectto the knowledge of Parent, no Parent Employee Benefit Plan is subject to any ongoing audit, investigation, or other administrative proceeding of any governmental entity, and no Parent Employee Benefit Plan is the subject of any pending application for administrative relief under any voluntary compliance program or closing agreement program of the IRS or the Department of Labor.
(jxii) Parent has the right to amend or terminate each Parent Employee Benefit Plan at any time without incurring any liability other than with respect to benefits that have already accrued under a Parent Employee Pension Benefit Plan.
(xiii) Neither Company Parent nor any Company Subsidiary orParent ERISA Affiliate has a formal plan, to the Company's knowledgecommitment, any Company ERISA Affiliateor proposal, whether legally binding or not, nor has any of them made a commitment to employees, officers, directors, consultants or independent contractors to create any additional Parent Employee Benefit Plan or modify, change or terminate any existing Parent Employee Benefit Plan, and no such plan, commitment or proposal is under serious consideration. To the ERISA Plansknowledge of Parent, no events have occurred or are expected to occur with respect to any trust created thereunder, Parent Employee Benefit Plan that would cause a material change in the cost of providing the benefits under such plan or any trustee or administrator thereof has engaged would cause a material change in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any the cost of providing for other liabilities of such plan. 45
(xiv) None of the ERISA Plans, assets of any such trust Parent Employee Pension Benefit Plan include "qualifying employer securities" or any trustee or administrator thereof, or any party dealing with "qualifying employer real property" within the ERISA Plans or any such trust meaning of Section 407(d) of ERISA.
(xv) Each Parent Employee Benefit Plan that is likely to be subject to either a civil liability under "group health plan," as defined in Section 409 of ERISA or Section 502(i607(1) of ERISA, or a tax imposed pursuant to section 4975 or 4976 Section 5001(b)(1) of the Code other than or 45 C.F.R. 160.103, has been operated at all times in material compliance with the provisions of COBRA, HIPAA and any applicable, similar state law.
(xvi) Each Parent Employee Pension Benefit Plan that is not qualified under Section 401(a) of the Code is exempt from part 2, 3 and 4 of Title I of ERISA as an unfunded plan that is maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees pursuant to Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. No assets of Parent are allocated to or held in a "rabbi trust" or similar vehicle with respect to any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effectplan.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to Schedule 4.17 sets forth a true and complete list of each material bonus“employee benefit plan,” as defined in Section 3(3) of ERISA, deferred and each and every written, unwritten, formal or informal plan, agreement, program, policy or other arrangement involving direct or indirect compensation (other than workers’ compensation, incentive compensationunemployment compensation and other government programs), stock purchaseemployment, stock optionseverance, severance or termination payconsulting, hospitalization or other medical, life or other insurancedisability benefits, supplemental unemployment benefits, vacation benefits, retirement benefits, deferred compensation, profit-sharing, pensionbonuses, options, appreciation rights, other forms of incentive compensation, post-retirement insurance benefits, or retirement planother benefits, programentered into, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to by Integral Analytics, or with respect to which they have, or may in the future have, any liability (contingent or otherwise) and subject to U.S. Law. Each plan, agreement, program, policy or arrangement required to be contributed set forth on Schedule 4.17 pursuant to by the foregoing is referred to herein as a “Benefit Plan.” Sellers and Integral Analytics acknowledge that: (ia) CompanyBuyer is not acquiring any interest in the stock or assets of Granite Management Services, Inc. and (iib) Buyer shall not be assuming any Company Subsidiary or obligations on the part of Granite Management Services, Inc.
(iiib) any trade or businessIntegral Analytics has delivered the following documents to Buyer with respect to each Benefit Plan, whether or not incorporated as applicable: (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true 1) correct and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (all documents embodying such Benefit Plan, including all amendments thereto);
, and all related trust documents, (ii2) a copy written description of the annual report and actuarial reportany Benefit Plan that is not set forth in a written document, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v3) the most recent determination letter summary plan description together with the summary or summaries of material modifications thereto, if any, (4) the three (3) most recent annual actuarial valuations, if any, (5) all IRS or DOL determination, opinion, notification and advisory letters, (6) the three (3) most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, (7) all material correspondence to or from any Governmental Entity received prior to in the date hereof from last three (3) years, (8) all discrimination tests for the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
most recent three (b3) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when dueplan years, and no condition exists that presents a (9) all material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which willwritten agreements and Contracts currently in effect, individually or in the aggregateincluding administrative service agreements, have a Company Material Adverse Effectgroup annuity Contracts, or give rise to a lien under Title IV of ERISAand group insurance Contracts.
(c) No Each Benefit Plan subject to has been maintained and administered in all material respects in compliance with its terms and with the minimum funding requirements of section 412 of the Code or section 302 of ERISA or prescribed by any trust established thereunder has incurred any "accumulated funding deficiency" and all statutes, orders, rules and regulations (as defined in section 302 of foreign and domestic), including ERISA and section 412 of the Code), whether which are applicable to such Benefit Plans. All contributions, reserves or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions premium payments required to be made with respect thereto (whether pursuant to the terms or accrued as of any such Plan or otherwise) on or prior to the date hereof to the Benefit Plans have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) made or accrued. Each Benefit Plan intended to be "qualified" within the meaning of section qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code is so qualified and either: (1) has received obtained, or relied upon, a currently effective favorable determination letter from the Internal Revenue Service notification, advisory and/or opinion letter, as applicable, as to its qualification andqualified status (or an opinion letter with respect to the qualified status of the master or prototype form on which it is established) from the IRS covering the all legislation for which the IRS will currently issue such a letter, to Company's knowledge, and no amendment to such Benefit Plan has been made to any such Plan adopted since the date of such letter covering such Benefit Plan that is likely would adversely affect such favorable determination; or (2) still has a remaining period of time in which to result in the disqualification of apply for or receive such Planletter and to make any amendments necessary to obtain a favorable determination.
(fd) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle Neither Integral Analytics nor any current or former employee ERISA Affiliates has contributed to, nor has ever been obligated to contribute to, any programs subject to Title IV of ERISA. The term “ERISA Affiliate” means any Person that, together with Integral Analytics and/or any of its Subsidiaries, would be deemed a “single employer” within the meaning of Sections 414(b), (c), (m) or officer (o) of Company the Code. Integral Analytics is not subject to any liability or penalty under ERISA. Integral Analytics has complied with all applicable health care continuation requirements as may be required by ERISA. Integral Analytics has not engaged in any Company Subsidiary 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.
(h) With transactions prohibited by ERISA with respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Benefit Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (aSchedule 5.20(a) With respect to each material contains a list of employee benefit plans under Section 3(3) of ERISA and any other employment, consulting, bonus, deferred compensation, incentive compensation, severance, termination or post-employment pay, disability, hospitalization or other medical, dental, vision, life or other insurance, stock purchase, stock option, severance or termination paystock appreciation, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharingstock award, pension, profit sharing, 401(k) or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) plan or arrangement (arising out of the "Plans")employment or the termination of an Employee, currently former employee, retiree or sales personnel, by the Seller, whether written or oral, tax-qualified under the Code or non-qualified, whether covered by ERISA or not, maintained or contributed to by the Seller, its Affiliates or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated business under common control with the Seller (a "Company ERISA Affiliate"as determined pursuant to Section 414(b), that together with Company is a "single employer" within (c), (m), (o) or (t) of the meaning of Section 4001 of ERISACode) covering any such person (collectively, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company “Benefit Plans”). The Seller has heretofore delivered or will after the date hereof make made available to Parent, upon request, the Purchaser true and complete copies of each the Benefit Plans. The Seller does not have any legally binding oral or written plan or other commitment, whether covered by ERISA or not, to create any additional plan, agreement or arrangement or to modify or change any existing Benefit Plan in any manner that would affect any of the following documents:
(iTransferred Employees. The Seller does not maintain, nor has it ever maintained or contributed to, a “multiemployer plan,” as that term is defined in Section 3(37) a copy of each Plan that ERISA. All contributions or other amounts which the Seller is in writing (including all amendments thereto);
(ii) a copy required to make under the terms of the annual report and actuarial report, if required under ERISA, Benefit Plans with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) Transferred Employees on or prior to the date hereof Closing have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) paid. There are no pending orpending, or to the Company's knowledgeSeller’s Knowledge, threatened claims by threatened, claims, litigation, administrative actions or on behalf of proceedings against or otherwise involving any of the Plans, Benefit Plans by any employee or beneficiary covered under any such Plan involving any such Plan Transferred Employee (other than routine claims for benefits), other than any such claims ) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(j) Neither Company nor . There is no judgment, decree, injunction, rule or order of any Company Subsidiary court, governmental body, commission, agency or arbitrator outstanding against or in favor of any Benefit Plan or, to the Company's knowledgeSeller’s Knowledge, any Company ERISA Affiliatefiduciary thereof in that capacity, any related to the Transferred Employees. None of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust Acquired Assets is likely to be subject to either a civil liability any Encumbrance under Section 409 302(f) of ERISA or Section 502(i412(n) of ERISAthe Code. Customers and Vendors. Set forth on Schedule 5.21(a) is a true, complete and current list of the Seller’s top 20 customers (the “Customers”), as measured by revenues contributed to the Business for each of (i) the year ended December 31, 2006 and (ii) the nine months ended September 30, 2007, including the revenue received from such Customers in each of such 12-month and nine-month periods. Schedule 5.21(b) is a true, complete and current list of each vendor that is a supplier of any significant material, product, component or service used in the Business during each of the year ended December 31, 2006 and the nine months ended September 30, 2007 (each, a “Vendor”). Except as set forth on Schedule 5.21(b), the Seller has written Contracts with each such Vendor, each of which Contract is included on Schedule 5.11(a). Schedule 5.21(b) identifies Vendors to whom the Seller paid in the aggregate $10,000 or more during the most recently completed fiscal year, together with, in each case, the amount paid or billed during such period. To the Seller’s Knowledge, no Customer has indicated in writing that it will stop, or a tax imposed pursuant materially decrease the rate of, purchasing services from the Business, and no Vendor has indicated in writing that it will stop, or materially decrease the rate of, supplying materials, products, components or services to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectBusiness.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to each material bonusExcept as disclosed in Schedule 4.14, deferred compensationneither Parent, incentive compensationany of its subsidiaries nor any entity that would be deemed a single employer with Parent under Section 414(b), stock purchase(c), stock option, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreementsm) or arrangement (o) of the Code or Section 4001 of ERISA (an "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate")) maintains or contributes to or has or has had any obligation or liability to or under any employee benefit plans, that together with Company is a programs, arrangements or practices (such plans within the meaning set forth in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("single employerERISA") (including any "Multi-Employer Plan" within the meaning of Section 4001 3(37) of ERISAERISA or a "Multiple Employer Plan" within the meaning of Section 413(c) of the Code), for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company other stock bonus, incentive compensation, vacation pay, severance, tuition reimbursement, welfare, health, postretirement, life, executive compensation, sick pay, stock option, or other plan, agreement program or arrangement, whether or not an ERISA Affiliateemployee benefit plan, Company whether written or unwritten, arrangements or practices of Parent or any of its ERISA Affiliates (referred to as the "Parent Plans"). Neither Parent nor any of its subsidiaries has heretofore delivered any obligation to create any additional such plan or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with amend any such plan so as to increase benefits thereunder. With respect to each such Parent Plan, copies of all documents embodying or relating to each Parent Plan for the last two including, without limitation, all plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Descriptiondocuments, together with each Summary of Material Modificationsamendments, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicleagreements, a copy of the trust collective bargaining agreements, written summaries or other funding agreement (including all amendments thereto) unwritten plans, annual reports, financial statements, IRS determination letters and the latest financial statements with respect communications from government agencies have been delivered to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the CodeSeller.
(b) No None of Parent, the ERISA Affiliates or any of their respective predecessors has ever contributed to, contributes to, has ever been required to contribute to, or otherwise participated in or participates in or has any liability (actual or contingent) with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA, Section 412 of the Code o Section 302 of ERISA including, without limitation, a Multiemployer Plan, Multiple Employer Plan or single employer pension plan.
(c) (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 could result in material penalties, taxes or liabilities, (ii) except for premiums due, there is no outstanding liability, whether measured alone or in the aggregate, under Title IV of ERISA with respect to any of the Parent Plans, (iii) neither the Pension Benefit Guaranty Corporation ("PBGC") nor any plan administrator has been incurred by Company, instituted proceedings to terminate any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk of the Parent Plans subject to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
, (civ) No Plan subject to the minimum funding requirements of section 412 none of the Code or section 302 of ERISA or any trust established thereunder Parent Plans has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the Parent Plans ended prior to the date hereof; and of this Agreement, (v) the current present value of all contributions required projected benefit obligations under each of the Parent Plans which is subject to be made with respect thereto (whether pursuant to Title IV of ERISA did not, as of the terms last day of any such Plan or otherwise) on or the most recent fiscal year of each of the Parent Plans ended prior to the date hereof have been timely made.
of this Agreement, exceed the then current value of the assets of such plan if based upon the actuarial assumptions used for funding purposes (dA) Except specified in the most recent actuarial valuation for such Parent Plan; (B) as required by the PBGC for the Parent Plan's termination; and (C) as set forth in Section 5.17(f) Statement No. 87 of the Company Disclosure LetterFinancial Accounting Standards Board, using the methodology to calculate the projected benefit obligation and no Plan amendments or other modifications to such Parent Plan's actuarial assumptions were adopted since the date of such Parent Plan's most recent actuarial report, (vi) each of the Parent Plans has been operated and administered in all material respects in accordance with applicable laws and its terms, (vii) each of the Parent Plans which is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received been determined by the IRS in accordance with Revenue Procedure 93-39, as subsequently modified or superseded, to be so qualified and such determination has not been modified, revoked or limited by failure to satisfy any condition thereof or by a favorable determination letter from subsequent amendment thereto or a failure to amend, (viii) with respect to Multi-employer Plans, neither the Internal Revenue Service Parent nor any of its ERISA Affiliates has made or suffered a "complete withdrawal" or a "partial withdrawal," as to its qualification such terms are defined in Sections 4203, 4204 and 4205 of ERISA, respectively, and, to Company's knowledgethe knowledge of Parent and its ERISA Affiliates, no amendment event has been made occurred or is expected to occur which presents a material risk of a complete withdrawal or partial withdrawal under said Sections 4203, 4204 and 4205, (ix) to the knowledge of Parent and its ERISA Affiliates, there are no pending, threatened or anticipated claims involving any such Plan since of the date of such letter that is likely to result Parent Plans, other than claims for benefits in the disqualification ordinary course, and (x) neither Parent nor any of such Plan.
(f) Each of the Plans its ERISA Affiliates has been operated and administered in all respects in accordance with applicable lawsany liability, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually whether measured alone or in the aggregate, have a material adverse effect on for plan termination or complete withdrawal or partial withdrawal under Title IV of ERISA, and Parent and its ERISA Affiliates do not reasonably anticipate that any such Planliability will be asserted against Parent or any of its ERISA Affiliates.
(gd) Except as expressly provided Listed in this AgreementSchedule 5.14 are all employment contracts and other employee benefit arrangements with "change of control" or similar provisions and all severance agreements with executive officers.
(e) All payments required by any Parent Plan, any exhibit heretocollective bargaining agreement or other agreement, or by law (including, without limitation, all contributions, insurance premiums, or intercompany charges) with respect to all periods through the date of the Closing shall have been made prior to the Closing (on a Plan pro rata basis where such payments are otherwise discretionary at year end) or as otherwise agreed in writing provided for by Parent as applicable, by full accruals as if all targets required by such Parent Plan had been or will be met at maximum levels) on its financial statements. No Parent Plan is, or is expected to be, under audit or investigation by the IRS or by any other governmental authority and Companyno such completed audit, if any, has resulted in the imposition of any tax or penalty. Each Parent Plan intended to meet requirements for tax-favored treatment under any provision of the Code, including, without limitation, Section 79, 105, 106, 117, 120, 125, 127, 129, 132, 162(m), 000, 000X, 000, 000X, or 501(c)(9) of the Code satisfies in all material respects the applicable requirements under the Code. With respect to each Parent Plan that is funded mostly or partially through an insurance policy, neither Parent nor any ERISA Affiliate has any liability in the nature of retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring on or before the Closing. The consummation of the transactions contemplated by this Agreement will not
(i) entitle not give rise to any current or former employee or officer of Company or any Company Subsidiary to liability, including, without limitation, liability for severance pay, unemployment compensation compensation, termination pay, or any other paymentwithdrawal liability, or
(ii) or accelerate the time of payment or vesting, vesting or increase the amount of compensation or benefits due to any employee, director, shareholder, or partner of Parent (whether current, former, or retired) or their beneficiaries solely by reason of such employee transactions. No amounts payable under any Parent Plan will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code. Neither Parent nor any ERISA Affiliate maintains, contributes to, or officer.
in any way provides for any benefits of any kind whatsoever (hother than under Section 4980B of the Code, the Federal Social Security Act, or a plan qualified under Section 401(a) With respect of the Code) to each any current or future retiree or terminee. No event, condition, or circumstance exists that could result in an increase of the benefits provided under any Parent Plan or the expense of maintaining any Parent Plan from the level of benefits or expenses incurred for the most recent fiscal year ended before the Closing. Neither Parent nor any ERISA Affiliate has any unfunded liabilities pursuant to any Parent Plan that is funded wholly not intended to be qualified under Section 401(a) of the Code. No event, condition, or partially through an insurance policy, circumstance exists that would prevent the Company and the Company Subsidiaries do not have amendment or termination of any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Parent Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Section 4.14(a) of the Company Disclosure Schedule sets forth each Benefit Plan. With respect to each material bonusBenefit Plan, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, true Parent correct and complete copies of each of the following documents:
Benefit Plan and any amendments thereto (or if the Benefit Plan is not a written plan, a written description thereof). Each material Benefit Plan has been established and maintained in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations (including ERISA and the Code) which are applicable to such Benefit Plan, except for such exceptions that would not have a Material Adverse Effect. In addition, the Company has made available (through the “datasite” used in connection with the Auction Process or its SEC Reports) to Parent (i) all material summary plan descriptions (and all summaries and descriptions furnished to participants and beneficiaries regarding the Benefit Plans for which a copy of each Plan that summary plan description is in writing (including all amendments theretonot required);
; (ii) a copy of all material insurance policies that were purchased to provide benefits under any Benefit plan current in force or for which the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
Company or any Subsidiary has any liability (contingent or otherwise); (iii) a copy of the most recent Summary all material contracts with third party administrators, actuaries, investment managers, consultants, and other independent contractors that relate to any Benefit Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
currently in force; (iv) all material discrimination testing reports and actuarial reports, if applicable, prepared within the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately three years prior to the date hereof; and
(v) the Form 5500 filed in each of the three most recent plan years with respect to each Benefit Plan, including all schedules thereto and the opinions of independent accountants; and (vi) with respect to each Benefit Plan that is intended to be qualified under Section 401(a) of the Code, the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to for each Plan intended to qualify under section 401 of the Codesuch Benefit Plan.
(b) No Neither the Company nor any of its ERISA Affiliates (i) has incurred any material liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when dueor (ii) has contributed to, has been required to contribute to, or has had any liability (contingent or otherwise) at any time within the last six (6) years with respect to any “ multiemployer plan, ” as that term is defined in Section 4001 of ERISA, and no condition exists (of which the Company has Knowledge, with respect to any “multiemployer plan” liabilities) that presents a material risk to the Company or any Company Subsidiary or any Company of its ERISA Affiliate Affiliates of incurring a liability under such Title which will, individually or in any of the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISAforegoing liabilities.
(c) No To the Knowledge of the Company, each Benefit Plan subject which is intended to the minimum funding requirements of section 412 be qualified under Section 401(a) of the Code or section 302 of ERISA or any is so qualified and no circumstances exist which will adversely affect such qualification, and each trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 for each such Benefit Plan is exempt from federal income tax under Section 501(a) of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the The consummation of the transactions contemplated by this Agreement will not
not (i) entitle any current or former employee employee, officer, director or officer consultant of the Company, any Subsidiary of the Company or any Company Subsidiary ERISA Affiliate to severance pay, unemployment compensation or any other similar termination payment, or
or (ii) accelerate the time of payment or vesting, or increase the amount of compensation of, or otherwise enhance, any benefit due to any such employee employee, officer, director or officerconsultant, other than as contemplated by Section 3.5 with respect to Options and shares of Restricted Stock.
(he) With No Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to each Plan that is funded wholly any current or partially through an insurance policy, former employees of the Company and or any Subsidiary of the Company Subsidiaries do not have any current liability for periods extending beyond their retirement or other termination of service other than (i) coverage mandated by applicable Law, (ii) death benefits or retirement benefits under any such insurance policy “employee pension plan,” as that term is defined in Section 3(2) of ERISA, or (iii) benefits the nature full cost of a retroactive rate adjustment which is borne by the current or loss sharing arrangement arising wholly former employee (or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Planhis beneficiary).
(if) There are no pending or, to the Knowledge of the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Benefit Plan (other than routine claims for benefits), other than any such benefits or claims that would not, individually or in the aggregate, not have a Company Material Adverse Effect).
(jg) Neither Company nor the Company, any Company Subsidiary ornor, to the Knowledge of the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof Affiliate has engaged in a or knowingly permitted to occur any transaction in connection with which Company prohibited by Section 406 of ERISA or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any “prohibited transaction” under Section 4975(c) of the ERISA PlansCode with respect to any Benefit Plan, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability except for transactions which are exempt under Section 409 408 of ERISA or Section 502(i4975 of the Code.
(h) To the Company’s Knowledge, each statutory and non-statutory stock option and each stock appreciation right granted by the Company was granted with a per share exercise price equal to or greater than the per share fair market value of ERISA, the Company’s underlying common stock on the grant date thereof and no such option or stock appreciation right has a tax imposed pursuant to section 4975 or 4976 feature for the deferral of compensation within the meaning of Section 409A of the Code and related rules and regulations. The Company has operated all nonqualified deferred compensation plans in good faith compliance with Section 409A of the Code and the regulations and other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effectguidance issued thereunder.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to each material 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including including, but not limited to to, employment agreements) or arrangement (the "Plans")arrangement, currently maintained or contributed to or required to be contributed to by (i) Company, HCI or (ii) any Company HCI Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary HCI or any Company ERISA AffiliateHCI Subsidiary (the "HCI Plans"), Company HCI has heretofore delivered or will after the date hereof make available to Parent, upon request, Rent-Way true and complete copies of each of the following documents:
: (i) a copy of each written HCI Plan that is in writing (including all written amendments thereto);
; (ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such HCI Plan for the last two plan years ending prior to the date hereof;
; (iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such HCI Plan;
; (iv) if the HCI Plan is funded through a trust or any other third party Party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
and (v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each HCI Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by CompanyHCI, any Company Subsidiary HCI Subsidiary, or any Company trade or business, whether or not incorporated that together with HCI or any HCI Subsidiary is a "single employer" within the meaning of section 4001 of ERISA Affiliate (an "HCI ERISA Affiliate") that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or HCI, any Company HCI Subsidiary or any Company HCI ERISA Affiliate of incurring a liability under such Title which will, would individually or in the aggregate, aggregate have a Company an HCI Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No HCI Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined 17 19 in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such HCI Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such HCI Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no No HCI Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any HCI Plan a plan described in Section section 4063(a) of ERISA.
(e) Each HCI Plan intended to be "qualified" within the meaning of section 401(a) of the Code either (i) has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledgethe knowledge of HCI, no amendment has been made to any such HCI Plan since the date of such letter that is likely to result in the disqualification of such PlanHCI Plan or (ii) is a standardized prototype plan, the form of which has been approved by the Internal Revenue Service.
(f) Each of the HCI Plans has been operated and administered in all respects in accordance with applicable lawsApplicable Law, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such HCI Plans that would not, not individually or in the aggregate, aggregate have a material adverse effect on any such Planan HCI Material Adverse Effect.
(g) Except as expressly provided in the HCI Disclosure Letter, neither the execution and delivery of this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, Agreement nor the Merger nor the consummation of any of the transactions contemplated by this Agreement will not
will: (i) entitle any current or former officer, director, employee or officer consultant of Company HCI or any Company HCI Subsidiary to severance pay, unemployment compensation or any other payment, or
or (ii) accelerate the time of payment or vesting, vesting or increase the amount of compensation due any such officer, director, employee or officerconsultant.
(h) With respect to each HCI Plan that is funded wholly or partially through an insurance policy, the Company HCI and the Company HCI Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing Closing other than any such liability that, that individually or in the aggregate, aggregate would not have a material adverse effect on the applicable Planan HCI Material Adverse Effect.
(i) There are no pending or, to the Company's knowledgeknowledge of HCI, threatened claims by or on behalf of any of the HCI Plans, by any employee or beneficiary covered under any such HCI Plan involving any such HCI Plan (other than routine claims for benefits), other than any such claims that would not, not individually or in the aggregate, aggregate have a Company an HCI Material Adverse Effect.
(j) Neither Company HCI nor any Company HCI Subsidiary or, to the Company's knowledgeknowledge of HCI, any Company HCI ERISA Affiliate, any of the ERISA HCI Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company HCI or any Company HCI Subsidiary or, to Parent's knowledgethe knowledge of HCI, any Company HCI ERISA Affiliate, any of the ERISA HCI Plans, any such trust or any trustee or administrator thereof, or any party Party dealing with the ERISA HCI Plans or any such trust is likely to be subject to either a civil liability under Section section 409 of ERISA or Section section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, not individually or in the aggregate, aggregate have a Company an HCI Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With Except as disclosed in the Parent SEC Reports, at the date hereof, Parent and its subsidiaries do not maintain or contribute to or have any obligation or liability to or with respect to each any material 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, agreement or arrangement, and each other employee benefit planplans, programprograms, agreement arrangements or practices, including employee benefit plans within the meaning set forth in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (including but not limited to employment agreements) or arrangement (the "PlansERISA"), currently maintained or contributed to or required to be contributed to by other similar material arrangements for the provision of benefits (i) Company, (ii) excluding any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employerMulti-employer Plan" within the meaning of Section 4001 3(37) of ERISA, for ERISA or a "Multiple Employer Plan" within the benefit meaning of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each Section 413(c) of the following documents:
Code) (i) a copy such plans, programs, arrangements or practices of each Plan that is in writing (including Parent and its subsidiaries being referred to as the "Parent Plans"). The Parent Disclosure Schedule lists all amendments thereto);
(ii) a copy Multi-employer Plans to which any of the annual report and actuarial report, if required under ERISA, them makes contributions or has any obligation or liability to make material contributions. Neither Parent nor any of its subsidiaries maintains or has any material liability with respect to each any Multiple Employer Plan. Neither Parent nor any of its subsidiaries has any obligation to create or contribute to any additional such Plan for 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 last two plan years ending prior to the date hereof;
(iii) a copy terms of the most recent Summary Plan DescriptionParent Plans, together under existing collective bargaining agreements or to comply with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Codeapplicable law.
(b) No liability 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 could result in penalties, taxes or liabilities which, singly or in the aggregate, could have a material adverse effect on the business, operations, properties, assets, condition (financial or other) or results of operations of Parent and its subsidiaries, taken as a whole, (ii) except for premiums due, there is no outstanding material liability, whether measured alone or in the aggregate, under Title IV of ERISA with respect to any of the Parent Plans, (iii) neither the Pension Benefit Guaranty Corporation nor any plan administrator has been incurred by Company, instituted proceedings to terminate any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk of the Parent Plans subject to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA other than in a "standard termination" described in Section 4041(b) of ERISA.
, (civ) No Plan subject to the minimum funding requirements of section 412 none of the Code or section 302 of ERISA or any trust established thereunder Parent Plans has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the Parent Plans ended prior to the date hereof; and of this Agreement, (v) the current present value of all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) projected benefit obligations under each of the Company Disclosure LetterParent Plans which is subject to Title IV of ERISA did not, no Plan as of its latest valuation date, exceed the then current value of the assets of such plan allocable to such benefit liabilities by more than the amount, if any, disclosed in the Parent SEC Reports as of December 31, 1996, based upon reasonable actuarial assumptions currently utilized for such Parent Plan, (vi) each of the Parent 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, singly or in the aggregate, would not reasonably be expected to have a material adverse effect on the business, operations, properties, assets, condition (financial or other) or results of operations of Parent and its subsidiaries, taken as a whole, (vii) each of the Parent Plans which is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter from been determined by the Internal Revenue Service to be so qualified and such determination has not been 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, (viii) with respect to Multi-employer Plans, neither Parent nor any of its subsidiaries has made or suffered a "complete withdrawal" or a "partial withdrawal ," as to its qualification such terms are respectively defined in Sections 4203, 4204 and 4205 of ERISA and, to Company's knowledgethe best knowledge of Parent and its subsidiaries, no amendment event has been made occurred or is expected to occur which presents a material risk of a complete or partial withdrawal under said Sections 4203, 4204 and 4205, (ix) 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, (x) Parent and its subsidiaries have no current material liability under Title IV of ERISA, and Parent and its subsidiaries do not reasonably anticipate that any such Plan since the date liability will be asserted against Parent or any of such letter that is likely to result in the disqualification of such Plan.
its subsidiaries, and (fxi) Each of the Plans has been operated and administered in all respects in accordance with applicable lawsno act, including, but not limited to, ERISA and the Code, except for any failure to so operate omission or administer such Plans that would not, transaction (individually or in the aggregate, have ) has occurred with respect to any Parent Plan that has resulted or could result in any material liability (direct or indirect) of Parent or any subsidiary under Sections 409 or 502(c)(i) or (l) of ERISA or Chapter 43 of Subtitle (A) of the Code. None of the Parent Controlled Group Plans has an "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code) or is required to provide security to a material adverse effect on any such PlanParent Plan pursuant to Section 401(a)(29) of the Code.
(gc) Except as expressly provided in this Agreement, any exhibit hereto, The Parent SEC Reports contain a Plan true and complete summary or as list of or otherwise agreed in writing by Parent describe all material employment contracts and Company, the consummation other employee benefit arrangements with "change of the transactions contemplated by this Agreement will not
(i) entitle any current control" or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) CFF has Previously Disclosed each material CFF Plan.
(b) With respect to each material bonusCFF Plan, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company CFF has heretofore delivered or will after the date hereof make made available to Parent, upon request, OVB true and complete copies of each of the following documents:
(i1) a copy of each the CFF Plan that is in writing and related documents (including all amendments thereto);
; (ii2) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Descriptionannual reports, financial statements, and actuarial reports, if any; (3) the most recent summary plan description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, ERISA with respect to such CFF Plan;
; and (iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v4) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each CFF Plan that is intended to qualify be qualified under section 401 of the Code.
(bc) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary CFF or any Company ERISA Affiliate of CFF since the effective date of ERISA that has not been satisfied in full when duefull, and no condition exists that presents a material risk to Company CFF or any Company Subsidiary or any Company ERISA Affiliate of CFF of incurring a liability under such Title which will, individually or in Title. None of the aggregate, have a Company Material Adverse Effect, or give rise CFF Plans is subject to a lien under Title IV of ERISA.
(cd) No Plan subject Neither CFF nor any ERISA Affiliate of CFF nor any of the CFF Plans, nor any trust created thereunder, nor, to the minimum funding requirements best knowledge of section CFF, any trustee or administrator thereof has engaged in a prohibited transaction (within the meaning of Section 406 of ERISA and Section 4975 of the Code) in connection with which CFF or any ERISA Affiliate of CFF could, either directly or indirectly, incur a material liability or cost.
(e) Full payment has been made, or will be made in accordance with Section 404(a)(6) of the Code, of all amounts that CFF or any ERISA Affiliate of CFF is required to pay under Section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to under the terms of any such Plan or otherwise) on or prior to the date hereof have been timely madeCFF Plans.
(df) Except as set forth in Section 5.17(f) None of the Company Disclosure Letter, no Plan CFF Plans is a "multiemployer pension plan," as such term is defined in section Section 3(37) of ERISA, nor a "multiple employer welfare arrangement," as such term is any Plan defined in Section 3(40) of ERISA, or a single employer plan described in 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.
(eg) Each A favorable determination letter has been issued by the Internal Revenue Service with respect to each CFF Plan that is intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter from to the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any effect that such plan is so qualified and each such CFF Plan since satisfies the date requirements of such letter Section 401(a) of the Code in all material respects. Each CFF Plan that is likely intended to result in satisfy the disqualification requirements of such Plan.
(fSection 125 or 501(c)(9) Each of the Plans Code satisfies such requirements in all material respects. Each CFF Plan has been operated and administered in all material respects in accordance with its terms and applicable laws, including, including but not limited to, to ERISA and the Code.
(h) There are no actions, except suits or claims pending, or, to the knowledge of CFF, threatened or anticipated (other than routine claims for benefits) against any failure CFF Plan, the assets of any CFF Plan or against CFF or any ERISA Affiliate of CFF with respect to so operate any CFF Plan. There is no judgment, decree, injunction, rule or administer such Plans that would notorder of any court, individually governmental body, commission, agency or arbitrator outstanding against or in the aggregatefavor of any CFF Plan or any fiduciary thereof (other than rules of general applicability). There are no pending or threatened audits, have a material adverse effect on examinations or investigations by any such governmental body, commission or agency involving any CFF Plan.
(gi) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and CompanyPreviously Disclosed, the consummation of the transactions contemplated by this Agreement will not
not (i) entitle any current or former employee or officer director of Company CFF or any Company Subsidiary ERISA Affiliate of CFF to severance pay, unemployment compensation or any other similar payment, or
or (ii) accelerate the time of payment or vesting, or increase the amount amount, of any compensation due to any such current or former employee or officer.
director, or (hiii) With respect to each Plan that is funded wholly renew or partially through an insurance policy, extend the Company and the Company Subsidiaries do not have term of any current liability under agreement regarding compensation for any such insurance policy in the nature of a retroactive rate adjustment current or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any former employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effectdirector.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Reorganization Agreement (Cortland First Financial Corp)
Employee Benefit Plans; ERISA. (a) With Section 4.13(a) of the Parent Disclosure Letter includes a complete list, as of the date hereof, of each material employee benefit plan, program or policy providing benefits to any current or former employee, officer or director of Parent or any of its Subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by Parent or any of its Subsidiaries or to which Parent or any of its Subsidiaries contributes or is obligated to contribute, or with respect to each which Parent or any of its Subsidiaries has or may have any Liability or obligations, including any employee welfare benefit plan within the meaning of Section 3(1) of ERISA or any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any material bonus, incentive, deferred compensation, incentive compensationvacation, stock purchase, stock option, severance severance, employment, change of control or termination payfringe benefit or similar arrangement, hospitalization or other medicalagreement, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, programprogram or policy (collectively, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "“Parent Benefit Plans"”), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company . Parent has heretofore delivered or will after the date hereof make made available to Parent, upon request, true and complete copies the Company a copy of each of the following documents:
(i) a copy of each Plan that is in writing (Parent Benefit Plans, including all any amendments thereto);
(ii) a copy of the annual report , and actuarial reportwhere applicable, if required under ERISAany related trust agreement, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of annuity or insurance contract, the most recent Summary Plan Descriptionactuarial valuation, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent summary plan description, the most recent prospectus, the most recent IRS determination letter received prior to letter, and the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Codemost recent annual report (Form 5500) and audited financial statements.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect Parent Material Adverse Effect: (i) Parent and its Subsidiaries have complied, and are now in compliance, with all provisions of all laws and regulations applicable to Parent Benefit Plans and each Parent Benefit Plan has been administered in accordance with its terms, including the making of all required contributions and the reflection by Parent of all required accruals on its financial statements; (ii) no event or condition exists which would reasonably be expected to subject Parent or any such Planof its Subsidiaries to Liability in connection with the Parent Benefit Plans or any plan, program, or policy sponsored or contributed to by any of their respective ERISA Affiliates other than the provision of benefits thereunder in the ordinary course; and (iii) there are no pending or, to Parent’s knowledge, threatened Actions (other than claims for benefits in the ordinary course) relating to Parent Benefit Plans which have been asserted or instituted and which would reasonably be expected to result in any Liability of Parent or any of its Subsidiaries.
(gc) Except as expressly provided in In no event will the execution and delivery of this Agreement, Agreement or any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Companyother related agreement, the consummation of the transactions contemplated by this Agreement will not
hereby or thereby, or the stockholder approval of the Merger (i) entitle any current either alone or former employee or officer of Company or any Company Subsidiary to severance pay, unemployment compensation or in conjunction with any other paymentevent, or
(iisuch as termination of employment) accelerate result in, cause the time of payment accelerated vesting, exercisability, funding or vestingdelivery of, or increase the amount or value of, any material payment or benefit to any current or former employee, officer or director of compensation due Parent or any such employee of its Subsidiaries or officerany beneficiary or dependent thereof or result in a limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(hd) With respect to Section 4.13(d) of the Parent Disclosure Letter identifies each Parent Benefit Plan that is funded wholly intended to be a “qualified plan” within the meaning of Section 401(a) of the Code or partially through an insurance policyis intended to be similarly qualified or registered under applicable foreign law (collectively, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the “Parent Qualified Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits”), other than any such claims that . Except as would not, individually or in the aggregate, reasonably be expected to have a Company Parent Material Adverse Effect, the IRS (or other relevant foreign regulatory agency) has issued a favorable determination letter (or similar approval under foreign law) with respect to each Parent Qualified Plan and the related trust that has not been revoked, and Parent knows of no existing circumstances or events that have occurred that would reasonably be expected to adversely affect the qualified status of any Parent Qualified Plan or the related trust, which cannot be cured without a Parent Material Adverse Effect.
(je) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company No Parent Benefit Plan or Parent ERISA Affiliate, any of the ERISA Plans, any trust created thereunderAffiliate Plan is, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary orever been, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Title IV or Section 409 302 of ERISA or Section 502(i412 or 4971 of the Code.
(f) of ERISANo Parent Benefit Plan or Parent ERISA Affiliate Plan is, or has ever been, a tax imposed pursuant Multiemployer Plan.
(g) There is no contract, agreement, plan or arrangement to section 4975 which Parent or 4976 any Subsidiary of Parent is a party, including but not limited to the Code other than any such liability or tax that would notprovisions of this Agreement, that, individually or in collectively, could give rise to the aggregate, have a Company Material Adverse Effectpayment of any material amount that would not be deductible pursuant to Section 162(m) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Inamed Corp)
Employee Benefit Plans; ERISA. (a) Schedule 4.19(a) of the Parent Disclosure Schedule lists all: (i) “employee pension benefit plans” as defined in Section 3(2) of ERISA (“Pension Plans”); (ii) “employee welfare benefit plans” as defined in Section 3(1) of ERISA (“Welfare Plans”) whether or not subject to ERISA; (iii) stock bonus, stock option, restricted stock, phantom stock, stock appreciation right, stock purchase or other equity compensation plans; bonus, profit-sharing, change-in-control or other incentive plans; deferred compensation arrangements; severance plans; holiday or vacation plans; sabbatical programs; relocation arrangements; or any other material fringe benefit programs; and (iv) other material employee benefit or compensation plans, programs, policies or arrangements excluding any that are Parent Contracts, in each case covering employees and directors of Parent or any Parent Subsidiary that either are maintained or contributed to by Parent or any of the Parent Subsidiaries or to which Parent or any of the Parent Subsidiaries is obligated to make payments or otherwise has or may have any liability (collectively, the “Parent Employee Benefit Plans”).
(b) With respect to each Parent Employee Benefit Plan, Parent and each of the Parent Subsidiaries are in compliance with and have performed all obligations required under, in each case, in all material bonusrespects, deferred compensationthe applicable provisions of ERISA, incentive compensation, stock purchase, stock option, severance or termination pay, hospitalization or the Code and other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangementApplicable Laws, and the terms of such Parent Employee Benefit Plan and each other employee benefit planParent Employee Benefit Plan has been administered in compliance with its terms and Applicable Laws, programincluding ERISA and the Code.
(c) All material contributions to, agreement (including but not limited to employment agreements) or arrangement (and material payments from the "Plans"), currently maintained or contributed to or Parent Employee Benefit Plans that are required to have been made in accordance with the Parent Employee Benefit Plans have been timely made, and timely deposits of employee contributions have been made.
(d) With respect to each Parent Employee Benefit Plan intended to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" “qualified” within the meaning of Section 4001 401(a) of the Code, each such Parent Employee Benefit Plan and the trusts, if any, maintained thereunder, are the subjects of a favorable determination or opinion letter from the IRS with respect to its qualification or Tax exemption, as the case may be, and no event has occurred and no condition exists with respect to the form or operation of such Parent Employee Benefit Plan that would cause the loss of such qualification or the imposition of any material liability, penalty or Tax under ERISA or the Code. No Parent Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code has permitted investment in Parent Securities.
(e) There are no: (i) Actions pending or, to the knowledge of Parent, threatened by any Government Authority involving the Parent Employee Benefit Plans; nor (ii) Actions pending or, to the knowledge of Parent, threatened claims (other than routine claims for benefits) against any Parent Employee Benefit Plans, against the assets of any of the trusts under any Parent Employee Benefit Plans or against any fiduciary of any Parent Employee Benefit Plans or against Parent or any Parent Subsidiary with respect to such Parent Employee Benefit Plans or asserting any rights or claims to benefits under any Parent Employee Benefit Plan or against the assets of any trust under such Parent Employee Benefit Plan. To the knowledge of Parent, there are no facts which would form the basis for any Action contemplated by this Section 4.19(e).
(f) For the past six (6) years from the date hereof, none of Parent, any of the Parent Subsidiaries nor any employee of the foregoing, nor any trustee, administrator, other fiduciary or any other “party in interest” or “disqualified person” with respect to the Pension Plans or Welfare Plans maintained by Parent or any of the Parent Subsidiaries, has engaged in a “prohibited transaction” (as such term is defined in Section 4975 of the Code or Section 406 of ERISA) except as would not create a material liability for Parent, other than one which qualifies for an applicable statutory exemption.
(g) None of Parent, any of the Parent Subsidiaries nor any of the Parent ERISA Affiliates sponsors, maintains, administers or contributes to, nor have they, in the past six (6) years from the date hereof, sponsored, maintained, administered or contributed to, or had any liability with respect to, any Pension Plan subject to Title IV of ERISA, for Sections 412, 430 or 4971 of the benefit Code or Section 302 of any employee ERISA. No Parent Employee Benefit Plan is: (i) a “multiemployer plan” (within the meaning of Section 3(37) of ERISA); (ii) a “multiple employer plan” (within the meaning of Section 413(c) of the Code); (iii) a “voluntary employees’ beneficiary association” (within the meaning of Section 501(c)(9) of the Code); or former employee (iv) a “multiple employer welfare arrangement” (within the meaning of CompanySection 3(40) of ERISA).
(h) With respect to each of the Parent Employee Benefit Plans, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true accurate and complete copies of each of the following documents:
documents have been made available to the Company: (i) a copy of each Plan that is in writing (the plan document and any related trust agreement, including all amendments thereto);
; (ii) a copy of the annual report any current summary plan descriptions and actuarial report, if required under ERISA, with respect other material communications to each such Plan for the last two plan years ending prior participants relating to the date hereof;
plan; (iii) a copy of each plan trust, insurance, annuity or other funding contract or service provider agreement related thereto; (iv) the most recent Summary Plan Description, together plan financial statements and actuarial or other valuation reports prepared with each Summary of Material Modificationsrespect thereto, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofany; and
(v) the most recent IRS determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
or opinion letter, if any; (bvi) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day copies of the most recent fiscal plan year of nondiscrimination and coverage testing results for each plan subject to such Plan ended prior to the date hereoftesting requirements; and (vii) the most recent annual reports (Form 5500) and all contributions required schedules attached thereto for each Parent Employee Benefit Plan that is subject to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely madeERISA and Code reporting requirements.
(di) Except as set forth in Section 5.17(f) None of the Company Disclosure LetterWelfare Plans maintained by Parent or any of the Parent Subsidiaries provides for continuing benefits or coverage for any participant or any beneficiary of a participant following termination of employment, no Plan is a "multiemployer pension plan," except as defined in section 3(37) may be required under the Consolidated Omnibus Budget Reconciliation Act of ERISA1985, nor is any Plan a plan described in Section 4063(a) as amended, and then only at the expense of ERISAthe participant or the participant’s beneficiary.
(ej) Each Plan intended to be "qualified" within Neither the meaning execution and delivery of section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, Agreement nor the consummation of the transactions contemplated by this Agreement will not
hereby, including the Merger, will, either alone or in combination with a termination of employment: (i) entitle any current or former employee employee, officer, director or officer other service provider of Company Parent or any Company Subsidiary of the Parent Subsidiaries to severance pay, unemployment compensation a change of control payment or any other paymentpayment by the Company, or
or Parent and any of the Parent Subsidiaries; or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee employee, officer, director or officer.
(h) With respect other service provider, in either case pursuant to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Parent Employee Benefit Plan.
(k) Parent and each Parent Subsidiary is in compliance in all material respects with the WARN Act. In the past two (2) years: (i) There are no pending or, to neither Parent nor any Parent Subsidiary has effectuated a “plant closing” (as defined in the Company's knowledge, threatened claims by WARN Act) affecting any site of employment or on behalf one (1) or more facilities or operating units within any site of employment or facility of its business; (ii) there has not occurred a “mass layoff” (as defined in the WARN Act) affecting any site of employment or facility of Parent or any of the Plans, Parent Subsidiaries; and (iii) neither Parent nor any Parent Subsidiary has been affected by any employee transaction or beneficiary covered under engaged in layoffs or employment terminations sufficient in number to trigger application of any such Plan involving similar state, local or foreign law or regulation. Neither Parent nor any such Plan Parent Subsidiary has caused any of its employees to suffer an “employment loss” (other than routine claims for benefits), other than any such claims that would not, individually or as defined in the aggregate, have a Company Material Adverse Effect.
WARN Act) during the ninety (j90) Neither Company nor any Company Subsidiary or, day period prior to the Company's knowledge, date hereof or any Company ERISA Affiliate, any similar event that when aggregated with enough such other events would trigger the advance notice requirements of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectWARN Act.
Appears in 1 contract
Samples: Merger Agreement (Stemcells Inc)
Employee Benefit Plans; ERISA. (a) With respect to each material of the 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, agreement or arrangement, and each other employee benefit planplan or program of IXATA (collectively, program, agreement (including but not limited to employment agreements) or arrangement (the "IXATA Plans") in force on or after December 31, 1994, except for multi-employer plans as defined in Section 3(37)(A) of the Employee Retirement Income Security Act of 1974, as amended, and any regulations or published rulings promulgated or issued thereunder ("ERISA"), currently maintained or contributed IXATA has delivered to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true SecurFone complete and complete accurate copies of each of the following documents:
: (i) a copy the plan documents of each Plan that is in writing of the IXATA Plans (including all amendments thereto);
; (ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan of the IXATA Plans that is an "employee benefit plan," as that term is defined in Section 3(3) of ERISA (collectively, the "IXATA ERISA Plans"), for the last two plan years ending prior to the date hereof;
years; (iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, ERISA with respect to such Plan;
the IXATA ERISA Plans; (iv) if the Plan is IXATA Plans are funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofthereof; and
and (v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each IXATA ERISA Plan intended to qualify under section 401 Section 401(a) of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary IXATA or any Company company that is an affiliate of IXATA under ERISA Affiliate (an "IXATA ERISA Affiliate") since the effective date of ERISA that has not been satisfied in full when duefull, and no condition exists that presents a material risk to Company IXATA or any Company Subsidiary or any Company IXATA ERISA Affiliate of incurring a any liability under such Title which willIV (other than liability for premiums due to the Pension Benefit Guarantee Corporation). To the extent this representation applies to Section 4064, individually Section 4069 or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Section 4204 of Title IV of ERISA, it is made not only with respect to IXATA ERISA Plans but also with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which IXATA or any IXATA ERISA Affiliate made, or was required to make, contributions during the five-year period ending on the date of this Agreement.
(c) No With respect to each IXATA ERISA Plan which is subject to Title IV of ERISA, the minimum funding requirements present value of section 412 accrued benefits under that plan, based upon the actuarial assumptions used for financial reporting purposes in the most recent actuarial report prepared by that plan's actuary with respect to that plan, did not exceed, as of its latest valuation date, the then current value of the Code or section 302 assets of that plan allocable to those accrued benefits.
(d) No IXATA ERISA Plan or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such each IXATA ERISA Plan ended prior to the date hereof; of this Agreement, and all contributions required to be made with respect thereto (whether pursuant to the terms of any such IXATA ERISA Plan or otherwise) on or prior to the date hereof of this Agreement have been timely made.
(de) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no No IXATA ERISA Plan is a "multiemployer multi-employer pension plan," as defined in section 3(37Section 3(37)(A) of ERISA, nor has IXATA ever been a party to any agreement which required it to contribute to a multi-employer pension plan on behalf of any employee, nor is any IXATA ERISA Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the IXATA Plans has been operated and administered in all material respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, Code except for any failure requirements which could not reasonably be expected to so operate or administer such Plans that would not, have individually or in the aggregate, have a material adverse effect on any such Planaggregate an IXATA Material Adverse Effect.
(g) Except No amounts payable under IXATA Plans or any other contract, arrangement or agreement will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code.
(h) No IXATA Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees of IXATA or any IXATA ERISA Affiliate beyond those employees' 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 expressly provided that term is defined in this AgreementSection 3(2) of ERISA, (iii) deferred compensation benefits accrued as liabilities on the books of IXATA or any exhibit hereto, a Plan IXATA ERISA Affiliate or as otherwise agreed in writing (iv) benefits the full cost of which is borne by Parent and Company, the those employees or their beneficiaries.
(i) The consummation of the transactions contemplated by this Agreement will not
not (i) entitle any current or former employee or officer of Company IXATA or any Company Subsidiary IXATA ERISA Affiliate to severance pay, unemployment compensation or any other payment, or
except as expressly provided in this Agreement, or (ii) accelerate the time of payment or vesting, or increase the amount amount, of any compensation due any such employee or officer.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect Except for the profit-sharing, medical and health plans set forth on Schedule 3.17, Battery Network does not maintain, administer or otherwise contribute to each material any Employee Benefit Plan, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject to any provision of ERISA and covers any employee, whether active or retired ("Employee Plans"). None of the Employee Plans set forth on Schedule 3.17 is a "multi-employer plan," as defined in Section 3(37) of ERISA, and Battery Network has not been obligated to make a contribution to any Employee Plan within the past five years on behalf of any employee. Except for those which will be terminated or canceled on or prior to the Closing, Battery Network does not maintain any form of current or deferred compensation (other than base salary and base wages), bonus, deferred compensation, incentive compensation, stock purchaseprofit sharing, stock option, stock appreciation right, severance or termination pay, hospitalization retirement, pension, salary continuation, group or other individual health, dental, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, survivor benefit or retirement similar plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) policy or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee employee, whether active or former employee retired, of Company, any Company Subsidiary class or any Company ERISA Affiliate, Company has heretofore delivered classes of its employees ("Benefit Arrangements"). The Stockholders have provided or will after the date hereof make available caused to Parent, upon request, true and complete copies of each of the following documents:
be provided to Buyer (i) a copy of each Employee Plan that is in writing and Benefit Arrangement, and a copy of each of the documents (including all amendments thereto);
trust agreements and other funding arrangements and summary plan descriptions) under which each such Employee Plan and Benefit Arrangement is operated; (ii) a copy of the most recent annual report and actuarial report, if any, required under ERISA, to be filed with the government or any agency thereof; (iii) with respect to each such Plan for any Employee Plans which are intended to be qualified under Section 401(a) of the last two plan years ending prior to the date hereof;
(iii) Code, a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as on the Plan's qualified status and a copy of the application for such letter; and (iv) a schedule showing either the annual cost or the current value of all benefits of each Employee Plan and Benefit Arrangement. With respect to its qualification all Employee Plans and Benefit Arrangements, Battery Network is in compliance in all material respects with the terms of each such plan or arrangement and, to Company's knowledgethe knowledge of Battery Network and the Stockholders, no amendment has been made to with the requirements prescribed by any such Plan since the date of such letter that is likely to result and all Laws as defined in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered Section 3.19 currently in all respects in accordance with applicable lawseffect, including, including but not limited to, to ERISA and the Code, applicable to such plans or arrangements. Since December 31, 1995, the Employee Plans and Benefit Arrangements have not been amended nor, except for pursuant to their terms as in effect on December 31, 1995, have any failure to so operate payments or administer contributions been made under such Plans that would notor Arrangements. Since December 31, individually 1995, Battery Network has not failed to make any contribution to, or in pay any amount due and owing as required by applicable law or by the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreementterms of, any exhibit hereto, a Employee Plan or as otherwise agreed Benefit Arrangement. The obligations of Battery Network with respect to any Employee Plan and Benefit Arrangement is fully funded. There is no pending or, to the knowledge of Battery Network or the Stockholders, threatened legal action, proceeding or investigation against Battery Network or any Employee Plan or Benefit Arrangement with respect to the employees of Battery Network, other than routine claims for benefits, which could result in writing by Parent liability to such plans or Battery Network. The execution of this Agreement and Company, the consummation of the transactions contemplated by this Agreement hereby will not
not result in any payment (iwhether of separation pay or otherwise) entitle becoming due from Battery Network to any current or former consultant or employee of Battery Network or officer of Company or any Company Subsidiary to severance paywill result in the vesting, unemployment compensation or any other payment, or
(ii) accelerate the time accelera tion of payment or vesting, or increase in the amount of compensation due any benefit payable to or in respect of any such current or former consultant or employee or officerof Battery Network.
(hb) With respect to each Plan that is funded wholly or partially through an insurance policyThe Stockholders, the Company who have been employees of WSB and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any sole participants of the PlansESOP Plan and Trust, by any employee or beneficiary covered under any such represent and warrant to Buyer that the ESOP Plan involving any such Plan (other than routine claims for benefits)and Trust has complied with all Laws, other than any such claims that would not, individually or in not limited to ERISA and the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created Code and regulations thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company its administration and operation and the sale to the Buyer of the outstanding shares of Common Stock of WSB pursuant to the WSB Stock Agreement and that any failure to comply has not and will not result in any loss, liability, expense or claim against Buyer or any Company Subsidiary orof its subsidiaries, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effectincluding WSB.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Schedule 3.23(a) contains a true and complete list and description of each Seller Plan.
(b) With respect to each material bonusSeller Plan, deferred compensationSeller has furnished to Purchaser true and complete copies of all plan documents, incentive compensationamendments, stock purchaseAgreements, stock optiontrust instruments, severance or termination payinsurance Contracts, hospitalization or other medicalfunding arrangements. With respect to any Seller Plan not reduced to writing, life Seller has furnished to Purchaser a true and complete written description of such Seller Plan. With respect to any such Seller Plans that are subject to the summary plan description requirements of section 102 of ERISA, Seller has furnished to Purchaser true and complete copies of the most recent summary plan descriptions (and any summary of material modifications thereto, if applicable). The Seller, the Company and any ERISA Affiliates have complied with all obligations under section 102 of ERISA and related regulations. With respect to each Seller Plan subject to annual reporting under ERISA, Seller has furnished to Purchaser all Forms 5500 Annual Return/Report of Employee Benefit Plan for the past five years. Seller has furnished to Purchaser copies of any correspondence with the Internal Revenue Service, Department of Labor, PBGC, or any other governmental entity relating to any Seller Plan.
(c) Each Seller Plan is in compliance in all material respects, and has been administered in compliance in all material respects, with applicable Law. No Seller Plan is currently under audit by the Internal Revenue Service, Department of Labor, PBGC, or other insurancegovernmental entity. Except as set forth in Schedule 3.23(c), supplemental unemployment benefitseach Seller Plan that is intended to be a pension, profit-sharing, pension401(k), or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required stock bonus plan qualified under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section 401(a) of the Code is so qualified, has received been operated and maintained in accordance therewith, is the subject of a favorable determination letter from the Internal Revenue Service (or an application for such a determination letter is pending), and has timely been amended in good faith to extend any applicable remedial amendment period under Rev. Proc. 2005-66; nothing has occurred with respect to the operation of any Seller Plan that would result in the loss of such qualification. There are no excise or other Taxes or penalties due or arising out of actions or failures to act with respect to any Seller Plan. Except as to its qualification and, to Company's knowledgeset forth on Schedule 3.23(c), no amendment has portion of any account balance or assets in any Seller Plan is invested in employer securities. No asset of any Seller Plan is subject to tax as unrelated business income.
(d) All contributions (including all employer contributions and employee salary reduction contributions) that were due have been timely made to each Seller Plan that is a Pension Plan. Appropriate entries have been made in financial records and statement for all obligations and liabilities under all Seller Plans. All contributions to all Seller Plans have been deductible under the Code. All premiums or other payments that are due have been paid with respect to each such Seller Plan that is an Employee Welfare Plan.
(e) Neither Seller nor the Company, nor any ERISA Affiliate, ever has contributed or currently contributes to any Multiemployer Plan. Neither Seller nor the Company, nor any ERISA Affiliate, has withdrawn from any Multiemployer Plan or has any outstanding withdrawal liability or delinquent contributions with respect to any such Multiemployer Plan. No event has occurred or circumstance exists that presents a risk of the occurrence of any withdrawal from, participation in, or termination, reorganization, or insolvency of, any Multiemployer Plan since the date of such letter that is likely to could result in any liability to either Seller, the disqualification Company or any ERISA Affiliate. Neither the Seller, the Company, nor any ERISA affiliate thereof has engaged in a transaction within the meaning of such Plansection 4212(c) of ERISA.
(f) Each Except as set forth on Schedule 3.23(f), the Company does not provide, nor has any liability for, health or welfare benefits with respect to any retired or former employees of Seller, the Plans Company, or any ERISA Affiliate (except for any continuation coverage under COBRA or other applicable state continuation coverage laws, for which such retired or former employee pays). Except as set forth on Schedule 3.23(f), the Company is not obligated to provide any health or welfare benefits to any active employees of Seller, the Company, or any ERISA Affiliate following such employee’s retirement or termination of service (except as mandated by COBRA or other applicable state continuation coverage laws). Neither the Company, Seller nor any ERISA Affiliate thereof has been operated ever sponsored, participated in or had any obligation to contribute to a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. Neither the Company, Seller, nor any ERISA Affiliate thereof has ever sponsored, maintained or had any obligation to contribute to a VEBA.
(g) Neither the Seller, the Company, nor any ERISA Affiliate, ever has sponsored, maintained, had any obligation to contribute to, or any liability with respect to, a DB Plan. No facts or circumstances exist that may subject the Seller, Company or any ERISA Affiliate to any liability under sections 4062, 4063, or 4064 of ERISA. Neither the Seller, the Company, nor any ERISA Affiliate, has engaged in a transaction to which section 4069 of ERISA applies.
(h) With respect to Seller Plans, Seller or the Company, as applicable, has duly and administered timely furnished, in compliance in all material respects in accordance with applicable lawsLaws, all notices required under applicable Laws to be given to Company participants, beneficiaries, and alternate payees, or to any Governmental Authorities, including, but not limited to, any notifications required by COBRA, by section 101(i) of ERISA and the Code(i.e., except for any failure to so operate blackout notices), or administer such Plans that would notby Field Assistance Bulletin 2006-03 (i.e., individually or in the aggregate, have a material adverse effect on any such Planperiodic benefit statements).
(gi) Each Seller Plan subject to ERISA has been administered in accordance with its written terms and ERISA. There has been no breach of fiduciary duty under section 404 of ERISA with respect to any Seller Plan, nor has any transaction occurred with respect to a Seller Plan prohibited by section 406 of ERISA for which there does not exist an applicable exemption under ERISA. With respect to any Seller Plan required to file Form 5500, complete and accurate Forms 5500 timely have been filed for all applicable years.
(j) With respect to Deferred Compensation Plans under which Current Employees have benefited, are benefiting or are eligible to benefit, no such Deferred Compensation Plans have been “materially modified” after October 3, 2004, and all such Deferred Compensation Plans have been administered in compliance with section 409A of the Code (and the published guidance issued thereunder). No payment that is owed or may become due under any Seller Plan is subject to tax under sections 280G, 409A or 4999 of the Code. The Company is under no obligation to reimburse any service provider or employee for any taxes under section 409A of the Code.
(k) Except as expressly specifically provided in Schedule 3.23(k), there are no claims, Proceedings or Liens, other than routine claims for benefits, pending or, to Seller’s Knowledge, threatened with respect to any Seller Plan as to which the Company has or could reasonably be expected to have any direct or indirect actual or contingent material liability.
(l) Except as provided in Schedule 3.23(l), neither the execution and delivery of this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, Agreement nor the consummation of the transactions contemplated hereby will increase any benefits otherwise payable under any Seller Plan. Except as provided in Schedule 3.23(l), there has been no announcement or commitment by this Agreement will not
(i) entitle any current or former employee or officer of Seller, Company or an ERISA Affiliate to create any Company Subsidiary new practice, plan or arrangement that constitutes a Seller Plan hereunder or to severance payamend any Seller Plan, unemployment compensation or any other payment, or
(ii) accelerate the time of payment or vesting, or except for technical amendments required by applicable law which do not materially increase the amount of compensation due any such employee or officer.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any costs of the PlansSeller, by any employee Company or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Stock Purchase Agreement (Metropolitan Health Networks Inc)
Employee Benefit Plans; ERISA. (a) With respect to Section 3.10(a) of the Disclosure Letter contains a true and complete list of each material bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance stock appreciation right or termination payother equity-based incentive, severance, termination, change in control, retention, employment, hospitalization or other medical, life or insurance, disability, other insurancewelfare, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and each other employee compensation or benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans")arrangement, currently sponsored, maintained or contributed to or required to be contributed to by (i) the Company, (ii) any Company Subsidiary of its Subsidiaries or (iii) by any trade or business, whether or not incorporated (a an "Company ERISA Affiliate"), since January 1, 2004 that together with the Company is or any of its Subsidiaries would be deemed a "single employer" within the meaning of Section section 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), for the benefit of any employee current or former employee or director of the Company, any Company Subsidiary of its Subsidiaries or any ERISA Affiliate or with respect to which the Company or any of its Subsidiaries has or would reasonably be expected to have any material liability (matured or unmatured, absolute or contingent) (the "Plans"). Section 3.10(a) of the Disclosure Letter identifies each of the Plans that is an "employee benefit plan," subject to ERISA Affiliate(the "ERISA Plans").
(b) With respect to each Plan, the Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, Parent true and complete copies of each of the following documents (including all amendments to such documents:):
(i) the Plans or a copy written description of each Plan that is any Plans not in writing (including all amendments thereto)writing;
(ii) a copy of the annual report and or Internal Revenue Service Form 5500 Series, if required under ERISA, with respect to each ERISA Plan for the last three Plan years ending prior to the date of this Agreement for which such a report was filed;
(iii) a copy of the actuarial report, if required under ERISA, with respect to each such ERISA Plan for the last two plan three Plan years ending prior to the date hereofof this Agreement;
(iiiiv) a copy of the most recent Summary Plan DescriptionDescription ("SPD"), together with each Summary all Summaries of Material ModificationsModification issued with respect to such SPD, if required under ERISA, with respect to such each ERISA Plan, and all other material employee communications relating to each ERISA Plan;
(ivv) if the Plan is or any obligations thereunder are funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof;
(vi) all contracts relating to the Plans with respect to which the last reporting period ended immediately prior to the date hereof; andCompany, any of its Subsidiaries or any ERISA Affiliate may have any liability, including insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements;
(vvii) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 401(a) of the Code; and
(viii) material communications that the Company or any of its ERISA affiliates or Subsidiaries has received from or sent to the Pension Benefit Guaranty Corporation, the Department of Labor, the Internal Revenue Service or any comparable agency of any foreign Governmental Entity concerning any termination of, withdrawal from or appointment of a trustee to administer any plan or the failure or alleged failure to comply with any provision of ERISA, the Code or comparable legislation of a foreign jurisdiction with respect to any plan, including any existing written description of any such oral communication.
(c) At no time within the past six (6) years has the Company, any of its Subsidiaries or any ERISA Affiliate ever, maintained, established, sponsored, participated in or contributed to any ERISA Plan that is subject to Title IV of ERISA. Except as disclosed in Section 3.10(c) of the Disclosure Letter, no ERISA Plan is a "multiemployer plan," as defined in section 3(37) of ERISA, nor is any ERISA Plan a plan described in section 4063(a) of ERISA.
(d) None of the Company, any of its Subsidiaries, any ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, nor, to the Knowledge of the Company, any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which the Company, any of its Subsidiaries or any ERISA Affiliate could be subject to any material liability for either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975(a) or (b), 4976 or 4980B of the Code.
(be) No liability under Title IV of ERISA has been incurred by All contributions and premiums that the Company, any Company Subsidiary of its Subsidiaries or any Company ERISA Affiliate that has not been satisfied in full when due, is required to pay under the terms of each of the ERISA Plans and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section Section 412 of the Code Code, have, to the extent due, been paid in full or section 302 properly recorded on the financial statements or records of the Company or its Subsidiaries. None of the ERISA Plans or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the ERISA Plans ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have this Agreement. No Lien has been timely made.
(d) Except as set forth in imposed under Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section 401(a412(n) of the Code or Section 302(f) of ERISA on the Assets or any assets of an ERISA Affiliate. No event or circumstance has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter occurred that is reasonably likely to result in the disqualification imposition of any such Lien on any such assets on account of any ERISA Plan.
(f) Each of the Plans has been operated and administered in all material respects in accordance with applicable laws, including, but not limited to, including ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Each of the ERISA Plans that is intended to be "qualified" within the meaning of Section 401(a) of the Code is so qualified. The Company has applied for and received a currently effective determination letter from the IRS stating that it is so qualified, or is entitled to rely on an opinion letter issued to a prototype plan sponsor regarding the qualified status of such plan, and no event has occurred which would reasonably be expected to affect such qualified status. Any fund established under an ERISA Plan that is intended to satisfy the requirements of Section 501(c)(9) of the Code has so satisfied such requirements.
(h) Except as expressly provided disclosed in this AgreementSection 3.10(h) of the Disclosure Letter, no amounts payable under any exhibit heretoof the Plans or any other contract, a agreement or arrangement with respect to which the Company or any of its Subsidiaries may have any liability could fail to be deductible for federal income tax purposes by virtue of Sections 280G or 162(m) of the Code.
(i) Except as disclosed in Section 3.10(i) of the Disclosure Letter, no ERISA Plan that provides life or medical benefit coverage (whether or not insured) provides such coverage after retirement or other termination of service (other than coverage mandated by applicable laws).
(j) Except as otherwise agreed disclosed in writing by Parent and CompanySection 3.10(j) of the Disclosure Letter, the consummation of the transactions contemplated by this Agreement will not
, either alone or in combination with any other event, (i) entitle any current or former employee employee, officer or officer director of Company the Company, any of its Subsidiaries or any Company Subsidiary ERISA Affiliate to severance pay, unemployment compensation or any other similar termination payment, or
or (ii) accelerate the time of payment or vesting, or increase the amount of compensation or otherwise enhance any benefit due any such employee employee, officer or officerdirector.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(ik) There are no pending or, to the Knowledge of the Company's knowledge, threatened claims by or on behalf of any of the PlansPlan, by any employee or beneficiary covered under any such Plan or otherwise involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect Except as set forth in the Parent SEC Reports, at the date hereof, Parent and its subsidiaries do not maintain or contribute to each any material 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, agreement or arrangement, and each other employee benefit planplans, programprograms, agreement arrangements or practices (including but not limited such plans, programs, arrangements or practices of Parent and its subsidiaries being referred to employment agreements) or arrangement (as the "Parent Plans"), currently maintained or contributed to or required to be contributed to by including employee benefit plans within the meaning set forth in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA AffiliateERISA"), that together with Company is a or other similar material arrangements for the provision of benefits (excluding any "single employerMulti-employer Plan" within the meaning of Section 4001 3(37) of ERISA, for ERISA or a "Multiple Employer Plan" within the benefit meaning of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(iSection 413(c) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code). The Parent Disclosure Schedule lists all Multi-employer Plans and Multiple Employer Plans which any of Parent or its subsidiaries maintains or to which any of them makes contributions. Neither Parent nor its subsidiaries has any obligation to create any additional such plan or to amend any such plan so as to increase benefits thereunder, except as required under the terms of the Parent Plans, under existing collective bargaining agreements or to comply with applicable law.
(b) No liability 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 could result in penalties, taxes or liabilities which, singly or in the aggregate, could have a material adverse effect on the business, operations, properties, assets, condition (financial or other) or results of operations of Parent and its subsidiaries, taken as a whole, (ii) except for premiums due, there is no outstanding material liability, whether measured alone or in the aggregate, under Title IV of ERISA with respect to any of the Parent Plans, (iii) neither the Pension Benefit Guaranty Corporation nor any plan administrator has been incurred by Company, instituted proceedings to terminate any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk of the Parent Plans subject to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA other than in a "standard termination" described in Section 4041(b) of ERISA.
, (civ) No Plan subject to the minimum funding requirements of section 412 none of the Code or section 302 of ERISA or any trust established thereunder Parent Plans has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the Parent Plans ended prior to the date hereof; and of this Agreement, (v) the current present value of all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) projected benefit obligations under each of the Company Disclosure LetterParent Plans which is subject to Title IV of ERISA did not, no Plan as of its latest valuation date, exceed the then current value of the assets of such plan allocable to such benefit liabilities by more than the amount, if any, disclosed in the Parent SEC Reports as of June 30, 1995, based upon reasonable actuarial assumptions currently utilized for such Parent Plan, (vi) 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, (vii) each of the Parent Plans which is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter from been determined by the Internal Revenue Service to be so qualified and such determination has not been 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, (viii) with respect to Multi-employer Plans, neither Parent nor any of its subsidiaries has made or suffered a "complete withdrawal" or a "partial withdrawal," as to its qualification such terms are respectively defined in Sections 4203, 4204 and 4205 of ERISA and, to Company's knowledgethe best knowledge of Parent and its subsidiaries, no amendment event has been made occurred or is expected to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have occur which presents a material adverse effect on any such Plan.
risk of a complete or partial withdrawal under said Sections 4203, 4204 and 4205, (gix) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by to the best knowledge of Parent and Companyits subsidiaries, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There there are no pending or, to the Company's knowledgematerial pending, threatened or anticipated claims by or on behalf of involving any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (Parent Plans other than routine claims for benefits)benefits in the ordinary course, other than and (x) Parent and its subsidiaries have no current material liability for plan termination or withdrawal (complete or partial) under Title IV of ERISA based on any such claims plan to which any entity that would not, individually or in the aggregate, have a Company Material Adverse Effect.be deemed one employer with Parent and its subsidiaries
(jc) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any The Parent SEC Reports contain a true and complete summary or list of the ERISA Plans, any trust created thereunder, or any trustee otherwise describe all material employment contracts and other employee benefit arrangements with "change of control" or administrator thereof has engaged in a transaction in connection similar provisions and all severance agreements with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effectexecutive officers.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to The Company Disclosure Schedule contains a true and complete list of each material bonus, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, vacation, severance or termination pay, disability hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreementsagreements and whether or not covered under Section 3(3) of ERISA) or arrangement (the collectively, "Company Plans"), ) currently maintained in whole or in part or contributed to to, or required to be contributed to to, by (i) Company, or (ii) any Company Subsidiary Subsidiary, or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is would be deemed a "single employer" within the meaning of Section 4001 of ERISA, ERISA for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate. With respect to each of the Company Plans, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true Parent complete and complete genuine copies of each of the following documents:
(i) a copy of each Company Plan that is in writing (including all amendments theretothereto and participating employer agreement);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Company Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Company Plan;
(iv) if the Company Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements and any actuarial reports required by ERISA with respect to the last reporting period ended immediately prior to the date hereofthereof;
(v) all pending applications, including all attachments, submitted to the Internal Revenue Service for Internal Revenue Service determination letters or rulings with respect to Company Plans, the latest determination letters or rulings issued by the Internal Revenue Service regarding the Company Plans and all other material correspondence for the last six years ending on the Closing Date with the Internal Revenue Service or U.S. Department of Labor relating to plan qualification, filing of required forms or pending, contemplated or announced plan audits with respect to the Company Plans; and
(vvi) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 written employment agreement, change in control agreement, severance agreement or similar agreement and all handbooks, memoranda or other statements of the Codeemployment policies.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which willTitle. To the extent this representation applies to Sections 4064, individually 4069 or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under 4204 of Title IV of ERISA, it is made not only with respect to the Company ERISA Plans but also with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which Company, any Company Subsidiary or any Company ERISA Affiliate made, or was required to make, contributions during the five-year period ending on the Effective Time.
(c) No Company Plan subject to the minimum funding requirements of section Section 412 of the Code or section Section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, any "unfunded benefit liability" (as defined in Section 4001(a)(18) of ERISA) or any "liquidity shortfall" (as defined in Section 412(m)(5) of the Code), as of the last day of the most recent fiscal year of such Company Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Company Plan or otherwise) on or prior to the date hereof have been timely made; and no event described in Section 401(a)(29) of the Code has occurred or can reasonably be expected to occur with respect to Company or any Company ERISA Affiliate and no "reportable event" (as that term is defined in Section 4043 of ERISA and for which the 30-day notice requirement has not been waived) has occurred with respect to any Company Plan within the last six years prior to the Closing Date.
(d) Except as set forth in Section 5.17(f) of the No Company Disclosure Letter, no Plan is a "multiemployer multi-employer pension plan," as defined in section Section 3(37) of ERISA, ERISA or a foreign plan as defined in Section 4(b)(4) of ERISA nor is any Company Plan a plan described in Section 4063(a) of ERISAERISA or is maintained as, or in connection with, an organization that is intended to meet the requirements for exemption from federal income taxes under Section 501(c)(9) of the Code.
(e) Each Company Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code is maintained under the form of a prototype plan that has received a favorable determination opinion letter from the Internal Revenue Service and can or will be timely submitted by Company (or any successor thereto that assumes any such plan) within the remedial amendment period described in Section 401(b) of the Code to the Internal Revenue Service in an application for a favorable determination letter as to its qualification andqualification, to Company's knowledge, and no amendment has been made to any such Company Plan since the date of such the letter that is likely to result in the disqualification of such Company Plan, and the Company Disclosure Schedule identifies which of the Company Plans is an "employee benefit plan", as that term is defined in Section 3(3) of ERISA (such plans being hereinafter referred to collectively as the "Company ERISA Plans").
(f) Each of the Company Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for Code and no issue is pending and no issue has been adversely resolved with respect to any failure to so operate or administer such of the Company Plans that would notmay subject Company, individually any Company Subsidiary or in the aggregateCompany ERISA Affiliate to any penalty, have a material adverse effect on interest, tax or other obligation, nor is there any basis for imposition of any such Planliability. All annual reports and actuarial reports required under ERISA or the Code have been accurately and timely filed.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the The consummation of the transactions contemplated by this Agreement will not
not (iA) entitle any current or former employee or officer of Company or any Company Subsidiary to severance pay, unemployment compensation or any other payment, or
or (iiB) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer, or (C) result in any prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available.
(h) With respect to each Company Plan that is funded wholly or partially through an insurance policy, the including, but not limited to, a "stop loss" policy issued in connection with a self-funded Company Plan, all policies are in force, premiums are paid up to date, and Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring prior to the closing other than Closing. For any such liability thatCompany Plan that is a welfare benefit plan (as defined in section 3(1) of ERISA) and is not wholly funded through an insurance policy, all liabilities for benefits that exceed $30,000 individually or and $2,106,798 in the aggregateaggregate (based on employee census figures available at December 31, would not have a material adverse effect 2001) are reimbursed to Company through an insurance policy; provided, however, that such aggregate amount is subject to adjustment monthly based on the applicable Planemployee census figures.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Company Plans, by any employee or beneficiary covered under any such Company Plan involving any such Company Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the Company ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or Company, any Company Subsidiary or, to ParentCompany's knowledge, any Company ERISA Affiliate, any of the ERISA Company Plans, any such trust trust, or any trustee or administrator thereof, or any party dealing with the ERISA Company Plans or any such trust is likely to or will be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section Section 4975 or 4976 of the Code Code.
(k) Except as may be required to maintain the favorable tax qualification of any Company Plan described in Section 5.15(e) of this Agreement, Company has no formal plan or commitment, whether legally binding or not, to create any additional Company Plan or modify or change any existing Company Plan that would affect any employee or terminated employee of Company or any Company Subsidiary.
(l) The Pension Benefit Guaranty Corporation has not instituted proceedings under Section 4042 of ERISA to terminate any Company ERISA Plan and no condition exists that presents a material risk that such proceedings will be instituted.
(m) With respect to severance payments, stock options, stock or any other change in control payments that are made under any Company Plan or under any other agreement or arrangement, no such payments will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code. The Company has no agreement, practice or other obligation to reimburse any person for tax liabilities arising under Section 4999 of the Code.
(n) No "leased employees", as that term is defined in Section 414(n) of the Code, perform services for Company or any Company Subsidiary.
(o) No Company Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees of Company or any Company Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable law, (ii) death benefits or retirement benefits under any such "employee pension benefit plan", as defined in Section 3(2) of ERISA, (iii) deferred compensation benefits accrued as liabilities on the books of Company or (iii) benefits the costs of which are borne by the current or former employee or his beneficiary.
(p) With respect to each of the Plans, the provisions of Section 4980B(f) of the Code have been complied with in all respects.
(q) Each Company Plan may be amended or terminated without liability or tax that would not, individually or (other than for benefits due in the aggregate, have a ordinary course) to Company Material Adverse Effector any Company ERISA Affiliate (or any successor thereto) on or at any time after the consummation of the transactions contemplated by this Agreement without contravening the terms of such plan or any law or agreement that pertains to Company or any Company ERISA Affiliate.
Appears in 1 contract
Samples: Merger Agreement (Symbion Inc/Tn)
Employee Benefit Plans; ERISA. (a) With Section 3.13(a) of the Company Disclosure Letter includes a complete list, as of the date hereof, of each material employee benefit plan, program or policy providing benefits to any current or former employee, officer or director 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, or with respect to each which the Company or any of its Subsidiaries has or may have any Liability or obligations, including any employee welfare benefit plan within the meaning of Section 3(1) of ERISA or any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any material bonus, incentive, deferred compensation, incentive compensationvacation, stock purchase, stock option, severance severance, employment, change of control or termination payfringe benefit or similar arrangement, hospitalization or other medicalagreement, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, programprogram or policy (collectively, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "PlansCOMPANY BENEFIT PLANS"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, . The Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, true and complete copies Parent a copy of each of the following documents:
(i) a copy of each Plan that is in writing (Company Benefit Plans, including all any amendments thereto);
(ii) a copy of the annual report , and actuarial reportwhere applicable, if required under ERISAany related trust agreement, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of annuity or insurance contract, the most recent Summary Plan Descriptionactuarial valuation, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent summary plan description, the most recent prospectus, the most recent IRS determination letter received prior to letter, and the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Codemost recent annual report (Form 5500) and audited financial statements.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
Company Material Adverse Effect: (i) entitle any current the Company and its Subsidiaries have complied, and are now in compliance, with all provisions of all laws and regulations applicable to Company Benefit Plans and each Company Benefit Plan has been administered in accordance with its terms, including the making of all required contributions and the reflection by the Company of all required accruals on its financial statements; (ii) no event or former employee or officer of condition exists which would reasonably be expected to subject the Company or any of its Subsidiaries to Liability in connection with the Company Subsidiary to severance pay, unemployment compensation Benefit Plans or any other paymentplan, or
(ii) accelerate the time of payment or vestingprogram, or increase policy sponsored or contributed to by any of their respective ERISA Affiliates other than the amount provision of compensation due any such employee or officer.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy benefits thereunder in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
ordinary course; and (iiii) There there are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan Actions (other than routine claims for benefitsbenefits in the ordinary course) relating to Company Benefit Plans which have been asserted or instituted and which would reasonably be expected to result in any Liability of the Company or any of its Subsidiaries.
(c) In no event will the execution and delivery of this Agreement or any other related agreement, the consummation of the transactions contemplated hereby or thereby, or the stockholder approval of the Merger (either alone or in conjunction with any other event, such as termination of employment) result in, cause the accelerated vesting, exercisability, funding or delivery of, or increase the amount or value of, any material payment or benefit to any current or former employee, officer or director of the Company or any of its Subsidiaries or any beneficiary or dependent thereof or result in a limitation on the right of the Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust.
(d) Section 3.13(d) of the Company Disclosure Letter identifies each Company Benefit Plan that is intended to be a "qualified plan" within the meaning of Section 401(a) of the Code or is intended to be similarly qualified or registered under applicable foreign law (collectively, the "COMPANY QUALIFIED PLANS"), other than any such claims that . Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the IRS (or other relevant foreign regulatory agency) has issued a favorable determination letter (or similar approval under foreign law) with respect to each Company Qualified Plan and the related trust that has not been revoked, and the Company knows of no existing circumstances or events that have occurred that would reasonably be expected to adversely affect the qualified status of any Company Qualified Plan or the related trust, which cannot be cured without a Company Material Adverse Effect.
(je) Neither No Company nor any Company Subsidiary or, to the Company's knowledge, any Benefit Plan or Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunderAffiliate Plan is, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary orever been, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Title IV or Section 409 302 of ERISA or Section 502(i412 or 4971 of the Code.
(f) No Company Benefit Plan or Company ERISA Affiliate Plan is, or has ever been, a Multiemployer Plan.
(g) There is no contract, agreement, plan or arrangement to which the Company or any Subsidiary of the Company is a party, including but not limited to the provisions of this Agreement, that, individually or collectively, could give rise to the payment of any material amount that would not be deductible pursuant to Section 162(m) of ERISAthe Code.
(h) No amount 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 or any other related agreement, the consummation of the transactions contemplated hereby or thereby, or the stockholder approval of the Merger (either alone or in conjunction with any other event, such as termination of employment), by any employee, officer or director of the Company or any Subsidiary of the Company who is a "disqualified individual" (as such term is defined in Treasury Regulation Section 1.280G-1) under any Company Benefit Plan or otherwise could be characterized as a "parachute payment" (as defined in Section 280G(b)(2) of the Code). The Company has made available to Parent all necessary information to determine, as of the date hereof, the estimated maximum amount that could be paid to each disqualified individual in connection with the transactions contemplated by this Agreement under all employment, severance and termination agreements, other compensation arrangements and Company Benefit Plans currently in effect, assuming that the individual's employment with the Company is terminated immediately after the Effective Time. The Company has also provided to Parent (i) the grant dates, exercise prices and vesting schedules applicable to each Company Option granted to the individual; (ii) the grant dates and vesting schedules applicable to each grant of Company Restricted Stock, (iii) the "base amount" (as defined in Section 280G(b)(e) of the Code) for each such individual as of the date of this Agreement and (iv) the maximum additional amount that the Company has an obligation to pay to each disqualified individual to reimburse the disqualified individual for any excise tax imposed pursuant to section 4975 or 4976 under Section 4999 of the Code other than with respect to the disqualified individual's excess parachute payments (including any such liability taxes, interest or tax that would not, individually or in penalties imposed with respect to the aggregate, have a Company Material Adverse Effectexcise tax).
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to Section 4.9 of the Disclosure Schedule contains a true and complete list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, stock appreciation right or other equity-based incentive, severance or termination pay, hospitalization or other medical, life life, disability or other insurance, supplemental unemployment benefits, profit-sharing, savings, pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans")arrangement, currently sponsored, maintained or contributed to or required to be contributed to by (i) Company, (ii) any the Company Subsidiary or (iii) by any trade or business, whether or not incorporated (a an "Company ERISA AffiliateAFFILIATE"), that together with the Company is would be deemed a "single employer" within the meaning of Section 4001 4001(b)(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), for the benefit of any employee current or former employee or director of Company, any the Company Subsidiary or any Company ERISA AffiliateAffiliate (the "PLANS").
(b) With respect to each Plan, the Company has heretofore delivered or will after the date hereof make available to Parent, upon request, Parent true and complete copies of each of the following documents:
, as applicable: (i) a copy of each the Plan that is in writing (including all amendments thereto);
) or a written description of any Plan that is not otherwise in writing; (ii) if required under ERISA, a copy of the annual report and actuarial report, if required under ERISA, valuation with respect to each such Plan for each of the last two three plan years ending prior to the date hereof;
years; (iii) a copy of the most recent Summary Plan DescriptionDescription required under ERISA with respect thereto, together with each Summary all Summaries of Material Modifications, if required under ERISA, Modification issued with respect to such Summary Plan Description, and a copy of all other material employee communications relating to the Plan;
; (iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof; (v) all contracts relating to the Plans with respect to which the last reporting period ended immediately prior to the date hereofCompany or any ERISA Affiliate may have any liability, including, without limitation, insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements; and
and (vvi) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 Section 401(a) of the Code or trust intended to qualify under Section 501(c)(9) of the Code.
(bc) No liability under Title IV of ERISA has been incurred by Company, Neither the Company nor any Company Subsidiary or any Company ERISA Affiliate that currently or within the six year period immediately preceding the date hereof, has not maintained, sponsored, contributed to or otherwise been satisfied in full when due, and no condition exists that presents a material risk obligated or required to Company or make contributions to any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise plan subject to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred , including without limitation any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section Sections 3(37) and 4001(a)(3) of ERISA, nor is any Plan a ERISA or plan described in Section 4063(a) of ERISA. Neither the Company nor any ERISA Affiliate has at any time incurred any liability under Title IV of ERISA in respect of a plan termination or a withdrawal from a multiemployer plan.
(d) Neither the Company nor any ERISA Affiliate, nor any Plan, nor any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection with which the Company or any ERISA Affiliate, any Plan, any such trust, or any trustee or administrator thereof, or any party dealing with any 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 or 4976 of the Code. Full payment has been made, or will be made in accordance with Section 404(a)(6) of the Code, of all amounts which the Company or any ERISA Affiliate is required to pay under the terms of each of the Plans, and all such amounts properly accrued through the Closing Date with respect to the current plan year thereof will be paid by the Company on or prior to the Closing Date or have been properly accrued for in the financial statements of the Company.
(e) Each Plan has been operated and administered in accordance with its terms and in all material respects in accordance with applicable law, including but not limited to ERISA and the Code. Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code is so qualified and the trusts maintained thereunder are exempt from taxation under Section 501(a) of the Code and no circumstances exist which may reasonably affect such qualified status. The Company has timely applied for and received a favorable currently effective determination letter from the Internal Revenue Service as with respect to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of each such Plan.
(f) Each No amounts payable under the Plans or any other agreement or arrangement with respect to which the Company may have any liability could give rise to the payment of any amount that would fail to be deductible for federal income tax purposes by virtue of Section 162(m) or 280G of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this AgreementNo Plan provides benefits, any exhibit heretoincluding without limitation death or medical benefits (whether or not insured), a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any with respect to current or former employee employees, directors or officer consultants of the Company or any Company Subsidiary to severance pay, unemployment compensation ERISA Affiliate beyond their retirement or any other payment, or
termination of service (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officerother than coverage mandated by applicable law).
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, there will be no liability of the Company and or any ERISA Affiliate, as of the Company Subsidiaries do not have any current liability Closing Date, under any such insurance policy or ancillary agreement with respect to such insurance policy in the nature of a retroactive rate adjustment or adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable PlanClosing Date.
(i) Except as set forth in Sections 3.6 or 4.9 of the Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee, officer, director, agent or consultant 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, or increase the amount of or otherwise enhance any compensation or other benefit (whether under any Plan or otherwise) to any such employee, officer, director, agent or consultant.
(j) There are no pending pending, threatened or, to the knowledge of the Company's knowledge, threatened anticipated claims by or on behalf of any of the PlansPlan, by any employee or beneficiary covered under any such Plan Plan, or otherwise involving the operation or administration of any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to each Section 5.13 of Parent's Disclosure Schedule lists all material bonusemployee benefit plans, deferred compensation, incentive compensation, stock purchase, stock option, severance or termination pay, hospitalization employment contracts or other medical, life arrangements for the provision of benefits for employees or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement former employees of Parent and its subsidiaries and neither Parent nor its subsidiaries have any commitment to create any additional plan, programcontract or arrangement or to amend any such plan, agreement contract or arrangementarrangement so as to increase benefits thereunder, and each other except as required under existing collective bargaining agreements. Section 5.13(a) of Parent's Disclosure Schedule identifies all "employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employerplans" within the meaning of Section 4001 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), other than "multiemployer plans" within the meaning of Section 3(37) of ERISA, for the benefit of any employee covering current or former employee employees of CompanyParent and its subsidiaries (the "Parent Plans"), any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after other than the date hereof make available to Parent, upon request, Parent Plans which are described in the Parent SEC Reports. A true and complete copies correct copy of each of the following documents:
employee benefit plans, employment contracts and other arrangements for the provision of benefits for employees and former employees of Parent and its subsidiaries described in the Parent Plans listed on Section 5.13(a) of Parent's Disclosure Schedule, except for any multiemployer plans, and all contracts relating thereto, or to the funding thereof (i) a copy of including, without limitation, all trust agreements, insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements), each Plan that is as will be in writing (including all amendments thereto);
(ii) a effect at the Effective Time, has been provided to the Company. A true and correct copy of the most recent annual report and report, actuarial report, if required under ERISAsummary plan description, and IRS determination letter with respect to each such Plan for the last two plan years ending prior Parent Plan, to the date hereof;
extent applicable, and a current schedule of assets (iiiand the fair market value thereof assuming liquidation of any asset which is not readily tradeable) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, held with respect to such any funded plan, Parent Plan;
(iv) if the Plan is funded through a trust , or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect benefit arrangement has been provided to the last reporting period ended immediately prior to Company by Parent, and there have been no material changes in the date hereof; and
(v) financial condition in the most recent determination letter received prior to the date hereof respective plans, Parent Plans or benefit arrangements from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Codethat stated in such annual report and actuarial reports.
(b) No Except as set forth in Section 5.13(b) of Parent's Disclosure Schedule, (i) there have been no prohibited transactions within the meaning of Section 406 of ERISA or Section 4975 of the Code with respect to any of the Parent Plans which, assuming that the taxable period of such transaction expired as of the date hereof, could subject Parent or its subsidiaries to a material tax or penalty under Section 502(i) of ERISA or Section 4975 of the Code; (ii) no liability (except for premiums due) has been or is expected to be incurred by Parent or any of its subsidiaries under Title IV of ERISA has been incurred with respect to any of the Parent Plans or with respect to any ongoing, frozen or terminated "single employer plan" within the meaning of Section 4001(a)(15) of ERISA currently or formerly maintained by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effectthem, or give rise to by any entity which is considered a lien single employer with Parent under Title IV Section 4001 of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 ERISA or Section 414 of the Code (a "Parent ERISA Affiliate"); (iii) all amounts which Parent or section 302 its subsidiaries are required to pay as contributions to the Parent Plans have been timely made or have been reflected in the financial statements described in Section 5.5; (iv) none of ERISA or any trust established thereunder the Parent Plans has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as ; (v) the current value of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualifiedbenefit liabilities" within the meaning of section 401(aSection 4001(a)(16) of ERISA (as determined on the Code has received a favorable determination letter from basis of the Internal Revenue Service as actuarial assumptions used in the Plan's most recent actuarial valuation) under each of the Parent Plans which is subject to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since Title IV of ERISA did not exceed the date then current value of the assets of such letter that is likely plan allocable to result such benefit liabilities by more than the amount disclosed in the disqualification Section 5.13(b) of such Plan.
Parent's Disclosure Schedule; (fvi) Each each of the Parent Plans has been operated and administered in all material respects in accordance with applicable laws, including, but not limited to, the reporting and disclosure requirements of Part 1 of Subtitle I of ERISA and the group health plan continuation requirements of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA; (vii) 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 IRS to be so qualified and Parent is not aware of any circumstances likely to result in revocation of any such determination; (viii) there are no material pending, threatened or anticipated claims involving any of the Parent Plans other than claims for benefits in the ordinary course; (ix) no notice of a "reportable event" within the meaning of Section 4043 of ERISA for which the 30-day reporting requirement has not been waived has been required to be filed for any of the Parent Plans; (x) neither Parent nor any of its subsidiaries is a party to, nor participates in or has any liability or contingent liability with respect to, any multiemployer plan (regardless of whether based on contributions of a Parent ERISA affiliate); and (xi) neither Parent nor its subsidiaries has any liability or contingent liability for retiree life and health benefits under any of the Parent Plans other than statutory liability for providing group health plan continuation coverage under Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code, except for any failure to so operate or administer such Plans that would not, individually or as set forth in the aggregate, have a material adverse effect on any such PlanSection 5.13(b) of Parent's Disclosure Schedule.
(gc) Except as expressly provided in Neither the execution and delivery of this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, Agreement nor the consummation of the transactions contemplated by this Agreement hereby will not
(i) entitle any current or former employee or officer of Company accelerate benefits or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability payments under any such insurance policy in the nature of a retroactive rate adjustment Parent employee agreement, plan or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Planarrangement.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Room Plus Inc)
Employee Benefit Plans; ERISA. (a) With respect to each material 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, agreement or arrangement, Section 3.25(a) of the Parent Disclosure Letter sets forth a correct and each other employee benefit plan, program, agreement complete list of all Parent Employee Benefit Plans.
(including but not limited to employment agreementsb) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company Parent has heretofore delivered or will after the date hereof make made available to Parent, upon request, true the Company correct and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
written Parent Employee Benefit Plan, as amended, together with audited financial statements and actuarial reports for the most recent plan year, if applicable; (ii) a copy of the annual report each funding vehicle and actuarial reportservice agreement related to each Parent Employee Benefit Plan, if required under ERISAreduced to writing, including all amendments; (iii) the most recent and any other material determination letter or ruling issued by any Governmental Authority with respect to each such Plan Parent Employee Benefit Plan, if applicable; (iv) the Form 5500 Annual Report, including all schedules and attachments, for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with plan year for each Summary of Material ModificationsParent Employee Benefit Plan, if required under ERISAapplicable, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to summary plan description and any summary of modifications for each Plan intended to qualify under section 401 Parent Employee Benefit Plan, if applicable. A description of the Code.
(b) No liability under Title IV any unwritten Parent Employee Benefit Plan, including a description of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year terms of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as plan, is set forth in Section 5.17(f3.25(b) of the Company Parent Disclosure Letter, no . Each Parent Employee Benefit Plan that is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section a “qualified plan” under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification which remains in effect and on which it can rely, and, to Company's Parent’s knowledge, there are no amendment has been made to any facts or circumstances that would jeopardize such Plan since the date of such letter that is likely to result in the disqualification of such Planqualification.
(fc) Each of the Plans has been operated and administered Parent Employee Benefit Plan complies in all material respects in accordance form and in operation with its terms and with all applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Companyrequirements under ERISA, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary to severance pay, unemployment compensation Code 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.
(h) applicable Law. With respect to each Plan that is funded wholly Parent Employee Benefit Plan, all contributions, payments, premiums, expenses, reimbursements or partially through an insurance policyaccruals for all periods have been and, as of the Company and the Company Subsidiaries do not Closing Date shall have any current liability under any such insurance policy been, timely made in the nature of a retroactive rate adjustment all material respects or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or accrued in the aggregate, would not have a material adverse effect on the applicable Planaccordance with past practice.
(d) Neither the Parent, any Parent Subsidiary nor any predecessors that operated the business or any Parent Plan Affiliate participates in or makes contributions to or has any other liability (contingent or otherwise) with respect to an “employee benefit plan” (as defined in Section 3(3) of ERISA) which is or was (i) a “multiemployer plan” within the meaning of Section 3(37) or 4001 of ERISA, (ii) a “multiple employer plan” within the meaning of Code Section 413(c), (iii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA or (iv) subject to Section 302 or Title IV of ERISA or Section 412 of the Code.
(e) There are no actions, suits, investigations or claims pending or, to the Company's Parent’s knowledge, threatened claims by with respect to any Parent Employee Benefit Plan or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan assets thereof (other than routine claims for benefits), and, to the Parent’s knowledge, there are no facts which would reasonably give rise to any material liability, action, suit, investigation, or claim against any Parent Employee Benefit Plan, any fiduciary or plan administrator or other than Person dealing with any such claims that would not, individually Parent Employee Benefit Plan or in the aggregate, have a Company Material Adverse Effectassets thereof.
(jf) Neither Company nor any Company Subsidiary orNo Parent Employee Benefit Plan provides medical, health, life insurance or other welfare-type benefits to retirees or former employees, owners or consultants or individuals who terminate (or have terminated) employment with Parent or the Company's knowledgeParent Subsidiaries, any Company ERISA Affiliate, or the spouses or dependents of any of the ERISA Plansforegoing (except for healthcare continuation coverage for former employees, any trust created thereunder, their spouses and other dependents as required to be provided under Section 4980B of the Code or Sections 601 through 608 of ERISA).
(g) Neither the execution and delivery of this Agreement or any trustee other Transaction Document to which Parent or administrator thereof has engaged in Merger Sub is a transaction party, nor the consummation of the transactions contemplated hereby or thereby, including the Merger, either alone or in connection with which any other event (whether contingent or otherwise), will (i) result in any payment (including severance, unemployment compensation, bonus or otherwise) becoming due to any director, officer or employee of the Company under any Parent Employee Benefit Plan or otherwise, (ii) result in a payment or benefit becoming due to any director, officer or employee of Parent or any Company Parent Subsidiary or, to Parent's knowledge, under any Company ERISA Affiliate, any Parent Employee Benefit Plan or otherwise which will be characterized as an “excess parachute payment” within the meaning of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i280G(b)(1) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than or result in any amount failing to be deductible by reason of Section 280G of the Code, (iii) increase any benefits otherwise payable under any Parent Employee Benefit Plan, or (iv) result in the acceleration of the time of payment, funding or vesting of any such benefits. Each Parent Employee Benefit Plan that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) complies in all material respects with Section 409A of the Code.
(h) To Parent’s knowledge, no Person: (i) has entered into any nonexempt “prohibited transaction,” as such term is defined in ERISA and the Code, with respect to any Parent Employee Benefit Plan; (ii) has breached a fiduciary obligation with respect to any Parent Employee Benefit Plan; or (iii) otherwise has any liability for any failure to act or tax comply in connection with the administration or investment of the assets of any Parent Employee Benefit Plan, in each case that would notreasonably be expected to give rise to a material liability to Parent and the Parent Subsidiaries, individually taken as a whole. Parent and each Parent Subsidiary has, for purposes of each relevant Parent Employee Benefit Plan, in all material respects, correctly classified those individuals performing services for Parent or in such Parent Subsidiary as common law employees, leased employees, independent contractors or agents of the aggregate, have a Company Material Adverse EffectParent or Parent Subsidiary.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to Section 3.19(a) of EML Disclosure Schedule sets forth a list that is complete and accurate in all material respects of each material 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, agreement or arrangementBenefit Plan, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans")arrangement, currently that is sponsored, maintained or contributed to or required to be contributed to by (i) Company, (ii) EML or any Company Subsidiary of the EML Subsidiaries or (iii) by any trade or business, whether or not incorporated (a "Company ERISA Affiliate")incorporated, that that, together with Company is EML, would or would have been at any date of determination occurring within the preceding five years, deemed a "“single employer" ” within the meaning of Section 4001 of ERISA, or considered as being members of a controlled group of corporations, under common control, or members of an affiliated service group within the meaning of Subsections 414(b) or (c) of the Code or Section 4001(a)(14) of ERISA (each such trade, business or member an “ERISA Affiliate”), in each case for the benefit of any employee or former terminated employee of Company, any Company Subsidiary EML or any Company ERISA Affiliateof the EML Subsidiaries (the “EML Plans”). No EML Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA, Company nor is any EML Plan a plan described in Section 4063(a) of ERISA.
(b) With respect to each EML Plan listed in Section 3.19(a) of the EML Disclosure Schedule, to the extent applicable, EML has heretofore delivered made available or has caused to be made available, or will after the date hereof make available or cause to Parentbe made available prior to the Closing, upon request, to EHC true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto)written EML Plan;
(ii) a copy of the most recent annual report on Form 5500 and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if summary plan description required under ERISA, ERISA with respect to such Planthereto;
(iv) if the EML Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofthereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each EML Plan intended to qualify under section Section 401 of the Code.
(bc) Each EML Plan intended to be qualified under Section 401(a) of the Code, and the trust (if any) forming a part thereof, has received a favorable determination letter from the Internal Revenue Service as to its qualification under the Code and to the effect that each such trust is exempt from taxation under Section 501(a) of the Code, and nothing has occurred with respect to such Plan since the date of such determination letter that could reasonably be expected to result in an EML Material Adverse Effect.
(d) No material liability under Title IV of ERISA has been incurred by CompanyEML or, to the Best Knowledge of EML, any Company Subsidiary or any Company ERISA Affiliate Affiliate, that has not been satisfied in full when duefull, and to the Best Knowledge of EML, no condition exists that presents a material risk to Company EML or any Company Subsidiary or any Company ERISA Affiliate of incurring a material liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISATitle.
(ce) No ERISA Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder that is subject to Section 302 of ERISA and Section 412 of the Code has incurred any "“accumulated funding deficiency" ” (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such each ERISA Plan ended prior to the date hereof; and Closing Date. To the Best Knowledge of EML, all contributions required to be made with respect thereto (whether pursuant to the terms of any such ERISA Plan or otherwise) on or prior to the date hereof Closing Date have been timely mademade or will be timely made prior to the Closing Date.
(df) Neither EML, nor, to the Best Knowledge of EML, any ERISA Affiliate, has engaged in a transaction in connection with which EML or the ERISA Affiliate could be subject to penalties under the excise tax or joint and several liability provisions of the Code relating to employee benefit plans that would, individually, or taken together with any amounts arising as a result of noncompliance with any of the other paragraphs of this Section 3.20, have or be reasonably likely to result in an EML Material Adverse Effect.
(g) To the Best Knowledge of EML, each Plan has been operated and administered in all material respects in accordance with its terms and Applicable Law, including ERISA and the Code, except where such noncompliance, individually, or taken together with any amounts arising as a result of noncompliance with any of the other paragraphs of this Section 3.20, would not have or be reasonably likely to result in an EML Material Adverse Effect.
(h) Except as set forth in Section 5.17(f3.20(h) of the Company EML Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and CompanySchedule, the consummation of the transactions contemplated by this Agreement will not
not (ix) entitle any current or former employee employee, director or officer of Company EML or any Company Subsidiary of the EML Subsidiaries to severance pay, unemployment compensation or any other payment, or
except as expressly provided in this Agreement or (iiy) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee employee, director or officer.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledgeBest Knowledge of EML, threatened or anticipated actions, suits or claims by or on behalf of any of the PlansEML Plan, by any employee or beneficiary covered under any such Plan EML Plan, or otherwise involving any such EML Plan (other than routine claims for benefits)) that would, individually, or taken together with any amounts arising as a result of noncompliance with any of the other than any such claims that would not, individually or in the aggregateparagraphs of this Section 3.20, have a Company or be reasonably likely to result in an EML Material Adverse Effect.
(j) Neither Company nor No EML Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service other than (i) coverage mandated by Applicable Law, (ii) death benefits or retirement benefits under any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged “employee pension plan,” as that term is defined in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i3(2) of ERISA, (iii) deferred compensation benefits accrued as liabilities on the books of EML, or a tax imposed pursuant to section 4975 (iv) benefits, the full cost of which is borne by the current or 4976 of the Code other than any such liability former employee (or tax that would not, individually his or in the aggregate, have a Company Material Adverse Effecther beneficiary).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Eastern Insurance Holdings, Inc.)
Employee Benefit Plans; ERISA. (a) With respect No liability under Title IV of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations thereunder (“ERISA”) has been incurred by New Era that has not been satisfied in full when due, and no condition exists that presents a material risk to each New Era of incurring a liability under such Title which would individually or in the aggregate have a New Era Material Adverse Effect or give rise to a lien under Title IV of ERISA.
(b) No material 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (ieach a “New Era Plan”) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "“accumulated funding deficiency" ” (as defined in section Section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such New Era Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such New Era Plan or otherwise) on or prior to the date hereof have been timely made.
(dc) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no No New Era Plan is a "multiemployer “multi-employer pension plan," ” as defined in section 3(37) of ERISA, nor is any New Era Plan a plan described in Section 4063(a) of ERISA.
(ed) Each New Era Plan 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 as to its qualification and, to Company's knowledgethe knowledge of New Era, no amendment has been made to any such New Era Plan since the date of such letter that is likely to result in the disqualification of such New Era Plan.
(fe) Each of the New Era Plans has been operated and administered in all material respects in accordance with applicable lawsApplicable Law, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans New Era Plan that would not, not individually or in the aggregate, aggregate have a material adverse effect on any such PlanNew Era Material Adverse Effect.
(gf) Except as expressly provided in this Agreement, any exhibit hereto, a New Era Plan or as otherwise agreed in writing by Parent New Era, neither the execution and Company, delivery of this Agreement nor the Share Exchange nor the consummation of any of the other transactions contemplated by this Agreement will notwill:
(i) entitle any current or former officer, director, employee or officer consultant of Company or any Company Subsidiary New Era 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 officer, director, employee or officerconsultant.
(hg) With respect to each New Era Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do New Era does not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing Closing other than any such liability that, that individually or in the aggregate, aggregate would not have a material adverse effect on the applicable Planan New Era Material Adverse Effect.
(ih) There are no pending or, to the Company's knowledgeknowledge of New Era, threatened claims by or on behalf of any of the New Era Plans, by any employee or beneficiary covered under any such New Era Plan involving any such New Era Plan (other than routine claims for benefits), other than any such claims that would not, not individually or in the aggregate, aggregate have a Company an New Era Material Adverse Effect.
(ji) Neither Company New Era nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA New Era Plans, any trust created thereunder, or any trustee or administrator thereof thereof, if any, has engaged in a transaction in connection with which Company or any Company Subsidiary New Era or, to Parent's knowledge, any Company ERISA Affiliatethe knowledge of New Era, any of the ERISA New Era Plans, any such trust trust, or any trustee or administrator thereof, or any party Party dealing with the ERISA New Era Plans or any such trust is likely to be subject to either a civil liability under Section section 409 of ERISA or Section section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code Code, other than any such liability or tax that would not, not individually or in the aggregate, aggregate have a Company New Era Material Adverse Effect.
Appears in 1 contract
Samples: Share Exchange Agreement (Silvergraph International Inc)
Employee Benefit Plans; ERISA. (a) With respect Schedule 5.14 lists all employee benefit plans and collective bargaining, employment or severance agreements or other similar arrangements to each material bonuswhich the Company, or any Controlled Group Affiliate, is or ever has been a party or by which any of them is or ever has been bound, legally or otherwise, including, without limitation, (i) any "employee welfare benefit plan" or "employee pension benefit plan" (within the meaning of Sections 3(1) or 3(2) of ERISA) (the "Company Plans"), (ii) any profit-sharing, deferred compensation, incentive compensationbonus, stock option, stock purchase, stock option, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, retainer, consulting, retirement, severance, welfare or retirement incentive plan, program, agreement or arrangement, and each other employee benefit (iii) any plan, programagreement or arrangement providing for "fringe benefits" or perquisites to employees, agreement (including officers, directors or agents, including, but not limited to benefits relating to Company automobiles, clubs, vacation, child care, parenting, sabbatical, sick leave, medical, dental, hospitalization, life insurance and other types of insurance, or (iv) any employment agreementsagreement not terminable on 30 days (or less) written notice or arrangement (providing for an annual salary in excess of $140,000. The plans, agreements and arrangements described in this Section 5.14 may be referred to herein as the "Plans"), currently maintained or contributed to or required to be contributed to by Benefit Arrangements." None of the Benefit Arrangements is (i) Companya plan intended to be tax-qualified under Section 401(a) of the Code, (ii) any Company Subsidiary a plan subject to Title IV of ERISA or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employermultiemployer plan" (within the meaning of Section 4001 3(37) of ERISA, for ). Neither the benefit of Company nor any employee Controlled Group Affiliate has ever contributed to or former employee of Company, had an obligation to contribute to any Company Subsidiary or any Company ERISA Affiliate, multiemployer plan. The Company has heretofore delivered or will after the date hereof make available to Parent, upon request, Parent and Subsidiary true and complete copies of each all documents and summary plan descriptions of the following documents:
(i) a copy Benefit Arrangements or summary descriptions of each Plan that is any such Benefit Arrangement not otherwise in writing (including all amendments thereto);
(ii) a copy writing. The Company has delivered to Parent and Subsidiary true and complete copies of the annual report and actuarial report, if required under ERISA, IRS Form 5500 filed in the most recent plan year with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Descriptionany Benefit Plan, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) schedules thereto and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 attached opinions of the Codeindependent accountants.
(b) No liability under Title IV "prohibited transaction" (within the meaning of ERISA has been incurred by Company, any Company Subsidiary Section 4975 of the Code or any Company ERISA Affiliate that has not been satisfied in full when due, Sections 406 and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV 408 of ERISA) has occurred with respect to any Benefit Plan.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code There is no negotiation, demand or section 302 of ERISA proposal that is pending or has been made which concerns matters now covered, or that would be covered, by any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely madeBenefit Arrangement.
(d) Except as set forth All Benefit Plans are in Section 5.17(f) full compliance with the relevant provisions of ERISA and the Code, the regulations and published authorities thereunder, and all other Laws applicable with respect to all such Benefit Plans. All Benefit Arrangements have been operated in accordance with their terms, and the Company Disclosure Letterand the Controlled Group Affiliates have performed all of their obligations under all Benefit Arrangements. There are no actions, suits or claims (other than routine claims for benefits in the ordinary course) pending or threatened against any Benefit Arrangement or arising out of any Benefit Arrangement and no Plan is a "multiemployer pension plan," as defined fact exists which could give rise to any such actions, suits or claim (other than routine claims for benefits in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISAthe ordinary course).
(e) Each Plan intended to be "qualified" within the meaning of section 401(a) of the Code has received Benefit Arrangements can be terminated by the Company within a favorable determination letter from period of 30 days following the Internal Revenue Service as Closing Date, without any additional contribution to its qualification and, to Company's knowledge, no amendment has been made to such Benefit Arrangement or the payment of any such Plan since additional compensation or amount or the date additional vesting or acceleration of such letter that is likely to result in the disqualification of such Planany benefits.
(f) Each All insurance premiums required with respect to any Benefit Arrangement as of the Plans has Closing Date have been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Planpaid.
(g) Except as expressly provided in For purposes of this AgreementSection 5.14, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge"Controlled Group Affiliate" means any corporation, threatened claims by trade or on behalf of any business which is affiliated with the Company, in the manner described in Section 414(b), (c), (m) and (o) of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA Code or Section 502(i4001(a)(14) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (C Cor Net Corp)
Employee Benefit Plans; ERISA. (a) With respect to each material bonusSection 5.13 of the Company Disclosure Schedule contains a list of the names and annual rates of compensation of the employees of the Company whose annual rates of compensation during the fiscal year ending December 31, 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, agreement or arrangement, and each other employee benefit plan, program, agreement 1997 (including but not limited to employment agreements) or arrangement (the "Plans"base salary, bonuses, commissions and incentive pay), currently exceeded $25,000 and provides a description of each of the following which is sponsored, maintained or contributed to or required to be contributed to by (i) Company, (ii) any the Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee the employees of the Company, any Company Subsidiary former employees of the Company, directors of the Company, former directors of the Company, or any agents, consultants or similar representatives providing services to or for the Company, or has been so sponsored, maintained or contributed to within six years prior to the Closing Date for the benefit of such individuals:
(i) each "employee benefit plan," as such term is defined in Section 3(3) of ERISA (including, but not limited to, employee benefit plans, such as foreign plans, which are not subject to the provisions of ERISA (each, a "Company ERISA AffiliatePlan");
(ii) each personnel policy, Company has heretofore delivered stock option plan, stock purchase plan, stock appreciation right, phantom stock plan, collective bargaining agreement, bonus plan or will after the date hereof make available to Parentarrangement, upon requestincentive award plan or arrangement, true vacation policy, severance pay plan,
(b) True, correct and complete copies of each of the following documents:Company Plans, related trusts, insurance or group annuity contracts and each other funding or financing arrangement relating to any Company Plan, including all amendments thereto, have been furnished to Parent. There has also been furnished to Parent, with respect to each Company Plan required to file such report and description, the most recent report on Form 5500 and the summary plan description. True, correct and complete copies or descriptions of each Benefit Program or Agreement have also been furnished to Parent. A schedule of employer expenses with respect to each Company Plan and Benefit Program or Agreement for the current plan year and past plan year has been furnished to Parent along with any administration agreement associated with any Company Plan. Parent has also been furnished the recent actuarial report or valuation for each Company Plan subject to Title IV of ERISA. Additionally, the most recent determination letter from the IRS for each of the Company Plans intended to be qualified under Section 401 of the Code, and any outstanding determination letter application for such plans have been furnished.
(i) a copy The Company has substantially performed all obligations, whether arising by operation of each Plan that is law or by contract, required to be performed by it in writing (including all amendments thereto)connection with the Company Plans and the Benefit Programs or Agreements, and to the knowledge of the Company and the Stockholders there have been no material defaults or violations by any other party to the Company Plans or Benefit Programs and Agreements;
(ii) a copy of the annual report All reports and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior disclosures relating to the date hereofCompany Plans required to be filed by the Company with or furnished to governmental agencies, Company Plan participants or Company Plan beneficiaries have been filed or furnished in accordance with applicable law in a timely manner, and each Company Plan and each Benefit Program or Agreement has been administered in substantial compliance with its governing documents;
(iii) a copy Each of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan Company Plans intended to qualify be qualified under section Section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in Code satisfies the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of such section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to IRS regarding such qualified status and has not, since receipt of the most recent favorable determination letter, been amended or operated in a way which would adversely affect such qualified status;
(iv) Each Company Plan and Benefit Program or Agreement has been administered in substantial compliance with its qualification andterms, the applicable provisions of ERISA, the Code and all other applicable laws and the terms of all applicable collective bargaining agreements;
(v) There are no actions, suits or claims pending (other than routine claims for benefits) or, to Company's knowledgethe knowledge of the Company or the Stockholders, threatened against, or with respect to, any of the Company Plans or Benefit Programs and Agreements or their assets;
(vi) All contributions required to be made to the Company Plans pursuant to their terms and provisions have been made timely;
(vii) As to any Company Plan subject to Title IV of ERISA, there has been no event or condition which presents the risk of plan termination, no amendment accumulated funding deficiency, whether or not waived, within the meaning of Section 302 of ERISA or Section 412 of the Code has been made incurred, no reportable event within the meaning of Section 4043 of ERISA (for which the disclosure requirements of Regulation Section 4043.1 et seq., promulgated by the Pension Benefit Guaranty Corporation ("PBGC") have not been waived) has occurred, no notice of intent to terminate the Company Plan has been given under Section 4041 of ERISA, no proceeding has been instituted under Section 4042 of ERISA to terminate the Company Plan, no liability to the PBGC has been incurred, and the assets of the Company Plan equal or exceed the actuarial present value of the benefit liabilities, within the meaning of Section 4041 of ERISA, under the Company Plan, based upon reasonable actuarial assumptions and the asset valuation principles established by the PBGC;
(viii) As to any such Company Plan since intended to be qualified under Section 401 of the date Code, there has been no termination or partial termination of the Company Plan within the meaning of Section 411(d)(3) of the Code;
(ix) No act, omission or transaction has occurred which would result in imposition on the Company of (1) breach of fiduciary duty liability damages under Section 409 of ERISA, (2) a civil penalty assessed pursuant to subsections (c), (i) or (l) of Section 502 of ERISA or (3) a Tax imposed pursuant to Chapter 43 of Subtitle D of the Code;
(x) There is no matter pending (other than routine qualification determination filings) with respect to any of the Company Plans before the IRS, the Department of Labor or the PBGC;
(xi) Each trust funding a Company Plan, which trust is intended to be exempt from federal income taxation pursuant to Section 501(c)(9) of the Code, satisfies the requirements of such section and has received a favorable determination letter from the IRS regarding such exempt status and has not, since receipt of the most recent favorable determination letter, been amended or operated in a way that would adversely affect such exempt status;
(xii) With respect to any employee benefit plan, within the meaning of Section 3(3) of ERISA, which is likely not listed in Section 5.13 of the Company Disclosure Schedule but which is sponsored, maintained or contributed to, or has been sponsored, maintained or contributed to result within six years prior to the Effective Time, by any corporation, trade, business or entity under common control with the Company, within the meaning of Section 414(b), (c) or (m) of the Code or Section 4001 of ERISA ("Commonly Controlled Entity"), (1) no
(xiii) Except as otherwise set forth in Section 5.13 of the disqualification Company Disclosure Schedule, the execution and delivery of such Planthis Agreement and the Transactions Documents and the consummation of the transactions contemplated hereby and thereby will not (1) require the Company to make a larger contribution to, or pay greater benefits under, any Company Plan or Benefit Program or Agreement than it otherwise would or (2) create or give rise to any additional vested rights or service credits under any Company Plan or Benefit Program or Agreement.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(gd) Except as expressly otherwise set forth in Section 5.13 of the Company Disclosure Schedule, the Company is not a party to any agreement, nor has it established any policy or practice, requiring it to make a payment or provide any other form of compensation or benefit to any person performing services for the Company upon termination of such services which would not be payable or provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the absence of the consummation of the transactions contemplated by this Agreement will notAgreement.
(ie) entitle There are no agreements which will or may provide payments to any current officer, employee, stockholder, or former employee highly compensated individual which will be "parachute payments" under Section 280G of the Code that are nondeductible to the Company or officer subject to tax under Section 4999 of the Code for which the Company or any Company Subsidiary to severance pay, unemployment compensation or any other payment, orERISA Affiliate would have withholding liability.
(iif) accelerate Except as otherwise set forth in Section 5.13 of the time Company Disclosure Schedule, the Company is not a party to or bound by any employment contract or other employee benefit arrangements with "change of payment control," severance or vestingsimilar provisions.
(g) Each Company Plan which is an "employee welfare benefit plan", as such term is defined in Section 3(1) of ERISA, may be unilaterally amended or increase the amount of compensation due any terminated in its entirety without liability except as to benefits accrued thereunder prior to such employee amendment or officertermination.
(h) With respect No Company Plan or Benefit Program or Agreement provides retiree medical or retiree life insurance benefits to each Plan that is funded wholly or partially through an insurance policy, the Company any person and the Company Subsidiaries do is not have contractually or otherwise obligated (whether or not in writing) to provide any current liability under any such person with life insurance policy in the nature or medical benefits upon retirement or termination of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing employment, other than any such liability that, individually or in as required by the aggregate, would not have a material adverse effect on provisions of Section 601 through 608 of ERISA and Section 4980B of the applicable PlanCode.
(i) There are no pending or, As to the Company's knowledge, threatened claims by or on behalf of any each Company Plan described in Section 5.13 of the PlansCompany Disclosure Schedule, which is a multiemployer plan within the meaning of Section 3(37) of ERISA, Section 5.13 of the Company Disclosure Schedule accurately describes the dollar amount of withdrawal liability which would be owed by any employee or beneficiary covered under any the Company to such Company Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in if the aggregate, have a Company Material Adverse Effect.ceased
(j) Neither Except as set forth in Section 5.13 of the Company Disclosure Schedule, no Company Plan or Benefit Program or Agreement provides that payments pursuant to such Company Plan or Benefit Program or Agreement may be made in securities of the Company or a Commonly Controlled Entity, nor does any trust maintained pursuant to any Company Subsidiary or, to the Company's knowledge, Plan or Benefit Program or Agreement hold any Company ERISA Affiliate, any securities of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectCommonly Controlled Entity.
Appears in 1 contract
Employee Benefit Plans; ERISA. As of the date of this Agree- ment and as of the Closing Time:
(a) With respect to each There are no material bonusemployee or director benefit plans, deferred compensationarrangements, practices, contracts or agreements (including, without limitation, employment agreements, change of control employment agreements and severance agreements, incentive compensation, stock purchasebonus, stock option, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, stock appreciation rights and each other employee benefit plan, program, agreement stock purchase plans) of any type (including but not limited to employment agreementsplans described in Section 3(3) or arrangement of the Employee Retirement Income Security Act of 1974, as amended (the "PlansERISA")), currently maintained by Barefoot, any of its subsidiaries or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a an "Company ERISA Affiliate"), that together with Company is Barefoot would be deemed a "single employercontrolled group" within the meaning of Section 4001 4001(a)(14) of ERISA, for or with respect to which Barefoot or any of its subsidiaries has or may have a liability, other than those listed on Section 3.8(a) of the benefit Disclosure Schedule (the "Benefit Plans"). Except as disclosed in Section 3.8(a) of the Disclosure Schedule (or as otherwise permitted by this Agreement) neither Barefoot 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 former terminated employee of Company, any Company Subsidiary Barefoot or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No With respect to any Benefit Plan, there are no material amounts accrued but unpaid as of the most recent balance sheet date that are not reflected on that balance sheet prepared in accordance with GAAP.
(c) With respect to each Benefit Plan: (i) if intended to qualify under Section 401(a), 401(k) or 403(a) of the Code, such plan has received, or an application is pending for, a determination letter from the Service that the Plan so qualifies, and its trust is exempt from taxation under Section 501(a) of the Code and Barefoot knows of no event that would prevent such qualification; (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; (iv) no material disputes are pending, or, to the knowledge of Barefoot, threatened; (v) no prohibited transaction (within the meaning of Section 406 of ERISA) has occurred; (vi) all contributions and premiums due (including any extensions for such contributions and premiums) have been made in full; (vii) no such Plan has incurred or will incur any "accumulated funding deficiency," as such term is defined in Section 412 of the Code, whether or not waived; (viii) no such Plan provides medical or death benefits with respect to current or former employees of Barefoot or any of its subsidiaries beyond their termination of employment, other than on an employee-pay-all basis; and (ix) no Plan is a "multiemployer plan," as such term is defined in Section 3(37) of ERISA, or is covered by Section 4063 or 4064 of ERISA.
(d) Neither Barefoot nor any ERISA Affiliate has incurred any material liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company since the effective date of ERISA Affiliate that has not been satisfied in full when due(including sections 4063-4064 and 4069 of ERISA) and, and to the knowledge of Barefoot, no condition exists that presents a material risk to Company or basis for any Company Subsidiary or such liability exists. Neither Barefoot nor any Company ERISA Affiliate of incurring a liability under such Title which will, individually maintains (or in the aggregate, have a Company Material Adverse Effectcontributes to), or give rise has maintained (or has contributed to) within the last six years, any employee benefit plan that is subject to a lien under Title IV of ERISAERISA (other than a Benefit Plan).
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(de) Except as set forth in Section 5.17(f3.8(e) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined Schedule or to the extent disclosed in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and CompanyBarefoot SEC Documents, the consummation of the transactions contemplated by this Agreement will not
(i) not entitle any current or former employee or officer of Company or any Company Subsidiary individual to severance pay, unemployment compensation pay or any other payment, or
(ii) accelerate the time of payment or vesting, or increase the amount amount, of compensation or benefits due to any individual with respect to any Benefit Plan. As a result of the transactions described herein, either alone or together with another event such employee or officeras termination of employment, except as set forth in Section 3.8(e) of the Disclosure Schedule, no party will be required to make a "parachute payment" to a "disqualified individual" within the meaning of Section 280G of the Code.
(hf) With respect Barefoot has delivered or made available to each Plan that is funded wholly or partially through an insurance policyServiceMaster accurate and complete copies of all plan texts, summary plan descriptions, trust agreements and other related agreements including all amendments to the Company 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 (the "Service"); and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending ortwo most recent actuarial reports, to the Company's knowledge, threatened claims by or on behalf of extent any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have foregoing may be applicable to a Company Material Adverse Effectparticular Benefit Plan.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Section 3.10(a) of the Disclosure Schedules lists all Employee Benefit Plans. With respect to each material bonusEmployee Benefit Plan, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, the Buyer true and complete copies of each of the following documents:
following, if and as applicable: (i) the current plan document, together with all amendments, or if unwritten, a copy written summary of all material plan terms; (ii) where applicable, any current trust agreements, insurance policies and other documents establishing other funding arrangements; (iii) the current summary plan descriptions (and all summaries of material modifications thereto), (iv) each current employee handbook; (v) in the case of any Employee Benefit Plan that is in writing (including all amendments thereto);
(iiintended to be qualified under Section 401(a) a copy of the annual report and actuarial reportCode, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Descriptiondetermination, together with each Summary of Material Modificationsadvisory, or opinion letter, if required under ERISAany, from the IRS; (vi) all non-routine filings made with respect any Governmental Authority during the three (3) calendar years preceding the date of this Agreement and Form 5500 and the relevant schedules, (vii) the three (3) most recent financial statements and actuarial valuation reports thereof; (viii) any written materials received by or sent by the Company relating to such Plan;
(iv) if the Plan is funded through a trust any investigation or audit by any Governmental Authority or any other third party funding vehiclesubmission under any voluntary compliance procedures (in each case, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to during the last reporting period ended immediately prior to the date hereof; and
three (v3) years), (ix) the three (3) most recent determination letter received prior to non-discrimination testing results, if applicable, (x) the date hereof from current administrative service and similar contracts and agreements and (xi) all Forms 1094-C and 1095-C for the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code2019 through 2022 calendar years.
(b) No Except as set forth on Section 3.10(b) of the Disclosure Schedules, neither the Company nor any ERISA Affiliate has ever maintained, contributed to or been required to contribute to, nor does the Company have any liability under or obligation (whether actual, contingent or otherwise, including through an ERISA Affiliate) with respect to: (i) any Multiemployer Plan subject to Title IV of ERISA has been incurred by Companyor (ii) any Employee Benefit Plan subject to Section 302 or Title IV of ERISA or Section 412 of the Code. The Company does not maintain or contribute to or have any liability or obligation (whether actual, any Company Subsidiary contingent or any Company ERISA Affiliate that has not been satisfied in full when dueotherwise) with respect to, and no condition exists that presents Employee Benefit Plan is, (i) a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate “multiple employer plan” within the meaning of incurring Section 413(c) of the Code, (ii) a liability under such Title which will, individually or in “multiple employer welfare arrangement” within the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV meaning of Section 3(40) of ERISA, (iii) a “voluntary employees beneficiary association” within the meaning of Section 501(c)(9) of the Code or (iv) a “welfare benefit fund” within the meaning of Section 419 of the Code. The Company does not have any current or contingent Liability with respect to any Employee Benefit Plan as a consequence of at any time being considered a single employer with an ERISA Affiliate.
(c) No Employee Benefit Plan subject provides for post-employment, post-service or retiree health, life insurance or other retiree welfare benefits to the minimum funding requirements of section 412 former employees of the Code Company, and the Company does not have any obligation, commitment, promise or section 302 of ERISA liability to provide any such benefits to any Person, other than health insurance continuation coverage pursuant to COBRA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such pursuant to applicable Law. All material contributions relating to an Employee Benefit Plan ended prior to the date hereof; and all contributions required to be have been made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth Each Employee Benefit Plan is, and in Section 5.17(fthe past three (3) of years has been operated, administered and maintained, in material compliance with its terms and the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) applicable requirements of ERISA, nor the Code, and any other applicable Laws. Each Employee Benefit Plan that is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since IRS or is the date subject of a favorable opinion letter from the IRS on the form of such letter that is likely to result in the disqualification of such Employee Benefit Plan.
(fe) Each (i) The Company has not engaged in any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Plans has been operated and administered in all respects in accordance Code) with applicable laws, including, but not limited to, respect to any Employee Benefit Plan that would be reasonably likely to subject the Company to any material Tax or penalty imposed by ERISA and or the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With no Action with respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Employee Benefit Plan (other than routine claims for benefits), other than any such claims that would not, individually or in ) is currently pending as of the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary date of this Agreement or, to the Knowledge of the Company's knowledge, threatened in writing.
(f) Each Employee Benefit Plan that is subject to Section 409A of the Code has, during the past three (3) years, been operated, administered, and maintained in compliance with its terms and Section 409A of the Code and all applicable regulations and guidance issued thereunder in all material respects. The Company does not have any obligation to gross up, indemnify, or otherwise reimburse any individual for any excise Taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(g) Except as set forth on Section 3.10(g) of the Disclosure Schedules, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event): (i) result in, or cause the accelerated vesting, payment, funding or delivery of, or increase the amount or value of, any Company ERISA Affiliatepayment or benefit to any current or former employee, any officer, director or other service provider of the ERISA PlansCompany under any Employee Benefit Plan; (ii) result in any severance, termination or similar types of payments or benefits under any trust created Employee Benefit Plan; (iii) result in any “parachute payment” as such term is defined in Section 280G of the Code (determined without regard to any shareholder cleansing vote and without regard to any reductions for “reasonable compensation” (within the meaning of Section 280G of the Code and the Treasury Regulations thereunder, )); or any trustee or administrator thereof has engaged (iv) result in a transaction in connection with which requirement to pay any tax “gross-up” or similar “make-whole” payments to any current or former employee, director, officer or consultant of the Company or any other Person.
(h) The Company Subsidiary orand each Employee Benefit Plan that is a “group health plan” as defined in Section 733(a)(1) of ERISA (a “Company Health Plan”) is, to Parent's knowledgeand in the past three (3) years has been, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing in compliance in all material respects with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (“PPACA”), the Health Care and Education Reconciliation Act of ERISA or Section 502(i) of ERISA2010, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectPub.
Appears in 1 contract
Samples: Securities Purchase Agreement (Masonite International Corp)
Employee Benefit Plans; ERISA. (a) With respect Neither Parent nor any of the Parent Subsidiaries is a party to each material bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance any oral or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by written (i) Companyemployment severance, collective bargaining or consulting agreement not terminable on 60 days' or less notice, (ii) agreement with any Company current or former executive officer or other current or former key employee of Parent or any Parent Subsidiary (A) the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Parent or any Parent Subsidiary of the nature of any of the transactions contemplated by this Agreement, (B) providing any term of employment or compensation guarantee extending for a period longer than six months, or (C) providing severance benefits or other benefits after the termination of employment of such executive officer or key employee regardless of the reason for such termination of employment, (iii) agreement, plan or arrangement under which any trade person may receive payments subject to the tax imposed by Section 4999 of the Code, or business(iv) agreement or plan, whether including, without limitation, any stock option plan, stock appreciation right plan, restricted stock plan or not incorporated (a "Company ERISA Affiliate")stock purchase plan, that together with Company is a "single employer" within the meaning benefits of Section 4001 which would be increased, or the vesting of ERISAbenefits of which would be accelerated, for by the benefit occurrence of any employee of the transactions contemplated by this Agreement or former employee the value of Company, any Company Subsidiary or of the benefits of which will be calculated on the basis of any Company ERISA Affiliate, Company has heretofore delivered or will after of the date hereof make available to Parent, upon request, transactions contemplated by this Agreement. The Parent Disclosure Schedule contains a true and complete copies correct description of the annual compensation, bonus plans and awards, options, SAR's, deferred compensation and all other material benefits for each of the following documents:
(i) a copy executive officers of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the CodeParent.
(b) No Neither Parent nor any corporation or other entity which under Section 4001(b) of ERISA is under common control with Parent (a "Parent ERISA Affiliate") maintains any Pension Plan or any Welfare Plan that is subject to ERISA. Each Pension Plan and Welfare Plan of Parent and the Parent ERISA Affiliates has been maintained in all material respects in compliance with its terms and all provisions of ERISA and the Code (including rules and regulations thereunder) and other applicable laws. Neither Parent nor any Parent ERISA Affiliate is subject to potential liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV Section 4069(a) of ERISA.
(c) No Pension Plan or Welfare Plan of Parent or any Parent ERISA Affiliate is currently subject to an audit or other investigation by the minimum funding requirements IRS, the Department of section 412 Labor, the Pension Benefit Guaranty Corporation or any other Governmental Entity nor are any such plans subject to any lawsuits or legal proceedings of the Code any kind or section 302 to any material pending disputed claims by employees or beneficiaries covered under any such plan or by any other parties.
(d) No "prohibited transaction," as defined in Section 406 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 Section 4975 of the Code), whether resulting in material liability to Parent or not waivedany Parent ERISA Affiliate has occurred with respect to any Pension Plan or Welfare Plan. Parent has no knowledge of any breach of fiduciary responsibility under Part 4 of Title I of ERISA which has resulted in or would result in any material liability to Parent, any trustee, administrator or fiduciary of any Pension Plan or Welfare Plan of Parent or any Parent ERISA Affiliate.
(e) Neither Parent nor any Parent ERISA Affiliate has maintained or contributed to, or been obligated or required to contribute to, a "Multiemployer Plan," as such term is defined in Section 4001(a)(3) of the last day ERISA. Neither Parent nor any Parent ERISA Affiliate has either withdrawn, partially or completely, or instituted steps to withdraw, partially or completely, from any Multiemployer Plan nor has any event occurred which would enable a Multiemployer Plan to give notice of the most recent fiscal year and demand payment of such Plan ended prior any material withdrawal liability with respect to Parent or any Parent ERISA Affiliate.
(f) There is no contract, agreement, plan or arrangement covering any employee or former employee of Parent or any Parent ERISA Affiliate that, individually or collectively, could give rise to the date hereof; and all contributions required to payment of any material amount that would not be made with respect thereto (whether deductible pursuant to the terms of any such Plan Sections 162(m) or otherwise) on or prior to 280G of the date hereof have been timely madeCode.
(dg) Except Parent has delivered or made available to the Company full and complete copies or descriptions of, and the Parent Disclosure Schedule contains a complete list of each Pension Plan, Welfare Plan and each other material agreement, policy, plan or other arrangement, whether written or oral, express or implied, fixed or contingent, to which Parent or any Parent ERISA Affiliate is a party or by which Parent or any Parent ERISA Affiliate is bound, which is or relates to a pension, option, bonus, deferred compensation, retirement, stock purchase, profit-sharing, severance pay, health, welfare, incentive, vacation, sick leave, medical disability, hospitalization, life or other insurance or fringe benefit plan, policy or arrangement. Certain of the employment agreements contain change in control provisions which will be triggered as of the Effective Time, as set forth in Section 5.17(f) of the Company Parent Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISASchedule.
(eh) Each Parent has delivered or made available to the Company, for each Pension Plan which is intended to be "qualified" within the meaning of section Section 401(a) of the Code has received Code, a favorable copy of the most recent determination letter from issued by the Internal Revenue Service as IRS to its qualification and, to Company's knowledge, no amendment has been made to any the effect that each such Plan since the date is so qualified and that each trust created thereunder is tax exempt under Section 501 of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for and Parent is unaware of any failure to so operate fact or administer such Plans circumstances that would not, individually or in jeopardize the aggregate, have a material adverse effect on any qualified status of each such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Pension Plan or as otherwise agreed in writing by Parent and Company, the consummation tax exempt status of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (American Oncology Resources Inc /De/)
Employee Benefit Plans; ERISA. (a) SCHEDULE 5.16 identifies each Benefit Plan by name and ERISA plan number, if any. Neither FirstBancorporation nor any of the Subsidiaries has a formal plan or commitment nor has it made an announcement of its intentions, whether or not legally binding, to create any additional Benefit Plan or modify or change any existing Benefit Plan except as specifically contemplated by this Agreement. With respect to each material bonusBenefit Plan, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies copy of each of the following documentshas been delivered to FNC:
(i) a copy of each Plan that is in writing the written Benefit Plan, if any (including all amendments thereto);
(ii) a copy of the annual report and actuarial reportreturns or reports (including, without limitation, reports on the Form 5500 series, including all attachments thereto), if required under ERISAERISA or the Code, for the three most recent plan years with filing deadlines prior to the date of the Agreement or for which returns have actually been prepared or filed prior to the date of the Agreement and a copy of each summary annual report with respect to each such Plan for the last two plan years ending prior to the date hereofannual report;
(iii) a copy of the most recent Summary Plan Descriptionsummary plan description, if any, together with each Summary subsequent summary of Material Modificationsmaterial modifications, if required under ERISA, with respect to such Planand all other material employee communications;
(iv) all written rules, regulations, procedures and interpretations, if the any, for such Benefit Plan;
(v) if such Benefit Plan is funded through a trust or any other third party funding vehiclearrangement, a copy of including insurance contracts, the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof;
(vi) all contracts relating to such Benefit Plan with respect to the last reporting period ended immediately prior to the date hereof; andwhich it may have any liability, including, without limitation, insurance contracts, investment management agreements, subscription and participation agreements, administration agreements and record keeping agreements;
(vvii) if such Benefit Plan is intended to be qualified under Section 401(a) of the Code, (A) the most recent determination letter received from the Internal Revenue Service, (B) each subsequent determination letter, and (C) complete copies of the determination letter applications (including attachments and cover letters) for such determination letters; and
(viii) all rulings, opinion letters, information letters or advisory opinions issued by the Internal Revenue Service or the United States Department of Labor within the ten-year period prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to The Company has Previously Disclosed each material bonusPlan by name and ERISA plan number, deferred compensation, incentive compensation, stock purchase, stock option, severance if any. The Company does not have a formal plan or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangementcommitment, and each other employee benefit plan, program, agreement (including but it has not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or businessmade an announcement of its intentions, whether or not incorporated (a "Company ERISA Affiliate")legally binding, that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of to create any employee additional Plan or former employee of Company, modify or change any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, existing Plan. A true and complete copies copy of each of the following documentshas been made available to FNB with respect to the Company:
(i) a copy of each written Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial reportreturns or reports (including, without limitation, reports on the Form 5500 series, including all attachments thereto), if required under ERISAERISA or the Code, with respect to each such Plan for the last two three most recent plan years ending with filing deadlines prior to the date hereofof the Agreement or for which returns have actually been prepared or filed prior to the date of the Agreement and a copy of each summary annual report with respect to each such annual report;
(iii) a copy of the most recent Summary Plan Descriptionsummary plan description, together with each Summary subsequent summary of Material Modificationsmaterial modifications, if required under ERISA, ERISA with respect to such each Plan and all other material employee communications relating to each Plan;
(iv) a copy of all written rules, regulations, procedures and interpretations for each Plan;
(v) if the a Plan is funded through a trust or any other third party funding vehiclearrangement, including insurance contracts, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof;
(vi) all contracts relating to the Plans with respect to the last reporting period ended immediately prior to the date hereof; andwhich it may have any liability, including, without limitation, insurance contracts, investment management agreements, subscription and participation agreements, administration agreements and record keeping agreements;
(vvii) the most recent determination letter received prior to the date hereof from the Internal Revenue Service that covers the entire Plan with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly intended to be qualified under Section 401(a) of the Code, each subsequent determination letter with respect to each such Plan, and complete copies of the determination letter applications (including attachments and cover letters) for each such determination letter; and
(viii) all rulings, opinion letters, information letters or partially through an insurance policy, advisory opinions issued by the Company and Internal Revenue Service or the Company Subsidiaries do not have any current liability under any such insurance policy in United States Department of Labor with respect to each Plan within the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring ten-year period prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plandate of this Agreement.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (FNB Corp/Nc)
Employee Benefit Plans; ERISA. (a) With respect Except for the employee plans disclosed on Schedule 2.18 (the "Employee Plans"), neither Borrower nor any Subsidiary maintains, contributes to each material or has an obligation to contribute to any employee benefit plans (as defined in Section 3(3) of ERISA), or any other severance, bonus, deferred compensationstock option, incentive compensationstock appreciation, stock purchase, stock optionretirement, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefitshealth, welfare, vacation, pension, profit-sharingsharing or deferred compensation plans, pensionagreements or arrangements providing benefits for employees or former employees of Borrower or any Subsidiary, nor has Borrower or retirement plan, program, agreement any Subsidiary or arrangement, and each other any officer or director of Borrower or any Subsidiary taken any action directly or indirectly to obligate Borrower or any Subsidiary to institute any such employee benefit planplans.
(b) Neither Borrower nor any Subsidiary has any liability with respect to any plans, program, agreement (including but not limited to employment agreementsarrangements or practices of the type described in Section 2.18(a) or arrangement (the "Plans"), currently previously maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary Borrower or any Company ERISA AffiliateSubsidiary, Company or to which Borrower or any Subsidiary previously had an obligation to contribute, which could have a material adverse effect upon the assets and properties, operations, condition (financial or otherwise) or business of Borrower and its Subsidiaries, taken as a whole. Borrower previously has heretofore delivered to Lender or will after the date hereof make available to Parentits counsel true, upon request, true complete and complete correct copies of each of the following documents:
(i) a copy of each Plan that is in writing (Employee Plans, including all amendments thereto);, and any other
(c) Neither Borrower nor any Subsidiary has made any promises or commitments to provide, and is under no obligation or liability to provide, (i) medical benefits (including through insurance) to retirees of Borrower or any Subsidiary or their dependents or (ii) a copy life insurance or other death benefits (including through insurance) to retirees of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;Borrower or any Subsidiary or their dependents.
(iiid) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the No Employee Plan is funded through a trust or any other third party funding vehicle, a copy "welfare benefit fund" as defined in Section 419(e) of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service Code of 1986, as amended (the "Code"). Except for the Subsidiaries, no other trade or business is or, at any time within the past six years, has been, treated, together with respect to each Plan intended to qualify Borrower, as a single employer under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 Section 414 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) 4001 of ERISA.
(e) Each Employee Plan intended to be "qualified" within the meaning of section qualified under Section 401(a) of the Code is so qualified and has received a favorable determination letter from heretofore been determined by the Internal Revenue Service as ("IRS") to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.be so
(f) Each With respect to any insurance policy that has, or does, provide funding for benefits under any Employee Plan, (i) there is no liability of the Plans has been operated and administered in all respects in accordance with applicable lawsBorrower or any Subsidiary, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregatenature of a retroactive or retrospective rate adjustment, have a material adverse effect on loss sharing arrangement, or other actual or contingent liability, nor would there be any such Planliability if such insurance policy was terminated on the date hereof, and (ii) no insurance company issuing any such policy is in receivership, conservatorship, liquidation or similar proceeding and, to the knowledge of Borrower, no such proceedings with respect to any insurer are imminent.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent The execution and Company, the consummation performance of the transactions contemplated by this Agreement will not
not (i) entitle constitute a stated triggering event under any current Employee Plan that will result in any payment (whether of severance pay or otherwise) becoming due from Borrower or any Subsidiary to any present or former officer, employee, director, shareholder or consultant, or former employee (or officer dependents of Company any thereof), or any Company Subsidiary to severance pay, unemployment compensation or any other payment, or
(ii) accelerate the time of payment or vesting, or increase the amount amount, of compensation due to any such employee employee, officer, director, shareholder or officerconsultant of Borrower or any Subsidiary.
(h) With All contributions, transfers, and payments by Borrower or any Subsidiary in respect to each of any Employee Plan that is funded wholly have been or partially through an insurance policy, are fully deductible under the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable PlanCode.
(i) There are no pending orNo Employee Plan provides benefits to any individual who is not a current or former employee of Borrower or a Subsidiary, to or the Company's knowledge, threatened claims by dependents or on behalf other beneficiaries of any of the Plans, by any employee such current or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effectformer employee.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Loan and Warrant Purchase Agreement (Best Software Inc)
Employee Benefit Plans; ERISA. (a) With respect to Section 4.12(a) of the Company Disclosure Schedule sets forth a complete and correct list of each material bonusplan, program, arrangement or agreement which is an employment, consulting, termination or deferred compensation agreement, or an executive compensation, incentive compensation, stock purchase, stock option, severance or termination pay, hospitalization bonus or other medicalbonus, life or other insurance, supplemental unemployment benefitsemployee pension, profit-sharing, pensionsavings, retirement, stock option, stock purchase, severance pay, life, health, disability or accident insurance plan, or retirement plan, program, agreement vacation or arrangement, and each other employee benefit plan, program, agreement (arrangement or agreement, including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" “employee benefit plan” within the meaning of Section 4001 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for the benefit of covering any employee or former employee consultant of Company, any the Company Subsidiary to which the Company or any ERISA Affiliate has any obligation to contribute, or with respect to which the Company or any ERISA AffiliateAffiliate has or may have any liability (each a “Company Benefit Plan” and, collectively, the “Company Benefit Plans”). The Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, PTI true and complete copies of each of the following documents:
(i) Company Benefit Plan as currently in effect, including, but not limited to, any trust instruments and/or insurance contracts, if any, forming a copy of each Plan that is in writing (including part thereof, all amendments thereto);
(ii) a copy of the annual report thereto and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter letters issued by the United States Internal Revenue Service (the “IRS”), all government and regulatory approvals received prior from any * Confidential treatment requested foreign Regulatory Agency, the most recent summary plan descriptions (including any material modifications), the most recent audited financial reports, if any, for any Company Benefit Plan and the two most recent Forms 5500, including financial statements and actuarial valuations, if any, required to the date hereof from be filed with the Internal Revenue Service with respect to each Company Benefit Plan. Neither the Company nor any ERISA Affiliate has made any plan or commitment, whether legally binding or not, to create any additional Company Benefit Plan intended or modify or change any existing Company Benefit Plan that would materially increase the benefits provided to qualify under section 401 any employee or former employee, consultant or director of the CodeCompany, except as required by applicable laws.
(b) No liability under Title IV of ERISA has been incurred by Company, any With respect to each Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
Benefit Plan: (ci) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan if intended to be "qualified" within the meaning of section qualified under Section 401(a) of the Code such Company Benefit Plan has received a favorable determination letter from the Internal Revenue Service as IRS that such Company Benefit Plan is qualified and that its related trust has been determined to its qualification be exempt from taxation under Section 501(a) of the Code and, to the Company's knowledge’s Knowledge, no amendment nothing has been made to any such Plan occurred since the date of such letter that is likely could reasonably be expected to result in the disqualification of cause any such Plan.
Company Benefit Plan or trust to cease to be so qualified or tax-exempt; (fii) Each of the Plans it has been operated and administered in material compliance with its terms and all respects in accordance with applicable laws, including, laws and regulations (including but not limited toto ERISA, the Code and any relevant foreign laws and regulations); (iii) there are no material pending or threatened claims against, by or on behalf of any Company Benefit Plans (other than routine claims for benefits); (iv) no breaches of fiduciary duty have occurred; (v) no non-exempt prohibited transaction within the meaning of Section 406 of ERISA and or Section 4975 of the Code has occurred; (vi) no Lien imposed under the Code, except for ERISA or any failure foreign law exists; and (vii) all contributions, premiums and expenses to so operate or administer such Plans that would not, individually or in respect of such Company Benefit Plan have been timely paid in full or, to the aggregateextent not yet due, have a material adverse effect been adequately accrued on any such Planthe Company’s consolidated financial statements to the extent required by GAAP.
(gc) The Company has not incurred and does not reasonably expect to incur, either directly or indirectly (including as a result of an indemnification obligation), any material liability under Title I or IV of ERISA or the penalty, excise tax or joint and several liability provisions of the Code or any foreign law or regulation relating to employee benefit plans (including, without limitation, Section 406, 409, 502(i), 502(l), 4069 or 4212(c) of ERISA, or Section 4971, 4975 or 4976 of the Code, or under any agreement, instrument, statute, rule or legal requirement pursuant to or under which the Company or any Company Benefit Plan has agreed to indemnify or is required to indemnify any person against liability incurred under, or for a violation or failure to satisfy the requirements of, any such legal requirement), and no event, transaction or condition has occurred, exists or, to the Knowledge of the Company, is expected to occur which could reasonably be expected to result in any such material liability to the Company or, after the Closing, to PTI.
(d) Neither the Company nor any ERISA Affiliate has been liable at any time for contributions to a plan that is or has been at any time subject to Section 412 of the Code, Section 302 of ERISA and/or Title IV of ERISA. Neither the Company nor any ERISA Affiliate has sponsored or contributed to or been required to contribute to a multiple employer plan (within the meaning of Section 413(c) of the Code), a multiemployer plan (within the meaning of Section 3(37) of ERISA) or a multiple employer welfare arrangement (within the meaning of Section 3(40) of ERISA).
(e) Except as expressly provided set forth in Section 4.12(e) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate has any obligation to provide health, life insurance, or death benefit coverage with respect to current or former employees, consultants or directors beyond their termination of employment or service, other than as required under Section 4980B of the Code or other applicable law, and each such Company Benefit Plan may be amended or terminated at any time without incurring liability thereunder other than liability for benefits incurred through the date of amendment or termination. There has been no communication to any employee, consultant or director of the Company that would reasonably be expected to promise or guarantee any such retiree health or life insurance or other retiree death benefits on a permanent basis.
(f) Neither the execution and delivery of this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, nor the consummation of the transactions contemplated by this Agreement will not
hereby, either alone or in combination with another event (whether contingent or otherwise) will: (i) entitle any current or former employee employee, consultant or officer director of the Company or any Company Subsidiary group of such employees, consultants or directors 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 to any such employee employee, consultant or officerdirector; (iii) accelerate the vesting or funding of any compensation, stock incentive or other benefit; (iv) result in any “parachute payment” under Section 280G of the Code; or (v) cause any compensation to fail to be deductible under Section 162(m), or any other provision of the Code or any similar foreign law or regulation.
(g) Neither the Company nor any ERISA Affiliate maintains any plan, agreement or arrangement, formal or informal, that provides severance benefits.
(h) With respect to each No Company Benefit Plan that is funded wholly under audit or partially through is the subject of an insurance policyaudit or investigation by the IRS, the Company and U.S. Department of Labor, the Company Subsidiaries do not have Pension Benefit Guaranty Corporation (“PBGC”) or any current liability under other federal or state governmental agency, nor to the Company’s Knowledge is any such insurance policy in the nature of a retroactive rate adjustment audit or loss sharing arrangement arising wholly investigation pending or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Planthreatened.
(i) There are no pending orAll liabilities with respect to any current or former employee, to the Company's knowledge, threatened claims by consultant or on behalf of any director of the PlansCompany or affiliate thereof, whether contingent or otherwise, that PTI will assume by any employee reason of this Agreement or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in by operation of law are accurately reflected on the aggregate, have a Company Material Adverse EffectFinancial Statements as required by GAAP.
(j) Neither Except as set forth in Section 4.12(j) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary orERISA Affiliate maintains any plan, program or arrangement or is a party to any contract that provides any benefits or provides for payments to any Person in, based on or measured by the value of, any equity security of, or interest in, the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Protherics PLC)
Employee Benefit Plans; ERISA. (a) All Benefit Plans are listed in Schedule 2.10. With respect to each Benefit Plan, the Company has made available to Xxxxxx Merger Corp.: any written Benefit Plans, any written descriptions of oral Benefit Plans, any summary plan descriptions, any trust agreements, the three most recent annual reports, Form 5500s and actuarial valuation reports, any copies of material 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, agreement or arrangementemployee communications, and each other employee benefit planany IRS determination letters. Except as set forth in Schedule 2.10 or as would not reasonably be expected to have a Material Adverse Effect, programas of the date hereof, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Companynone of the Benefit Plans is a Defined Benefit Plan and no ERISA Affiliate contributes to, maintains or would reasonably be expected to have any liability under any Defined Benefit Plan, (ii) each Benefit Plan has at all times been maintained and administered in accordance with its terms and with the requirements of Law, including ERISA and the Code, and each Benefit Plan intended to qualify under Section 401(a) of the Code has at all times since its adoption been so qualified, and each trust which forms a part of any Company Subsidiary or such plan has at all times since its adoption been tax-exempt under Section 501(a) of the Code, (iii) no payment or benefit under any trade Benefit Plan, including, without limitation, any severance or businessparachute payment plan or agreement, will be established or become accelerated, vested or payable by reason of any transaction contemplated under this Agreement (whether alone or not incorporated (a "Company ERISA Affiliate"in connection with any subsequent event(s)), that together with (iv) no Benefit Plan provides any health or death benefit coverage, and neither the Company is a "single employer" within nor its Subsidiaries have any obligations to provide health or death benefit coverage, beyond the meaning termination of Section 4001 an employee’s employment (other than on account of the employee’s death while employed), except as required by Part 6 of Subtitle B of Title I of ERISA, for Section 4980B of the benefit of any employee or former employee of Company, any Company Subsidiary Code or any Company ERISA Affiliatestate laws requiring continuation of benefits coverage following termination of employment, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received all contributions to Benefit Plans that were required to be made prior to the date hereof from under such Benefit Plans have been made, and all benefits accrued prior to the Internal Revenue Service date hereof under any unfunded Benefit Plan have been paid or otherwise adequately reserved in accordance with GAAP, and each member of the Company Group and each Affiliate thereof has performed all obligations required to be performed under all Benefit Plans, (vi) with respect to each Plan intended any Benefit Plan, no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to qualify under section 401 the knowledge of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when duethreatened, and (vii) there is no condition exists that presents a material risk to contract, plan or arrangement (written or otherwise) covering any employee or former employee, director or independent contractor of the Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which willits Subsidiaries that, individually or in the aggregate, have a Company Material Adverse Effect, or would reasonably be expected to give rise to a lien under Title IV the payment of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or amount that would not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether deductible pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section 401(a) 280G of the Code has received as a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date result of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle whether alone or in connection with any current or former employee or officer of Company or any Company Subsidiary 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 officersubsequent event).
(hb) With respect to each Plan that is funded wholly any Foreign Pension Plans and except as set forth on Schedule 2.10 or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, as would not reasonably be expected to have a material adverse effect on Material Adverse Effect as of the applicable Plan.
date hereof, (i) There are no pending orall Foreign Pension Plans have been established, to the Company's knowledgemaintained and administered in compliance with their terms and all applicable statutes, threatened claims by or on behalf laws, ordinances, rules, orders, decrees, judgments, writs, and regulations of any controlling governmental authority or instrumentality, and (ii) all Foreign Pension Plans that are required to be funded are fully funded, and with respect to all other Foreign Pension Plans, adequate reserves therefore have been established on the accounting statements of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which applicable Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effectentity.
Appears in 1 contract
Samples: Recapitalization Agreement and Plan of Merger (Leiner Health Services Corp.)
Employee Benefit Plans; ERISA. (a) Section 4.12(a) of the Company Disclosure Schedule includes a complete list, as of the date hereof, of each Company Benefit Plan. With respect to each material bonusof the written Company Benefit Plans, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, Parent true and complete copies of each of the following documents:
documents to the extent applicable: (i) a copy of each Plan that is in writing (including the governing plan document, all amendments thereto and related trust documents, group contracts, insurance policies or other funding arrangements, and amendments thereto);
; (ii) a copy of the three most recently filed Forms 5500 annual report returns and all schedules thereto, including any audited financial statements and auditors’ opinions; (iii) the most recent favorable determination, opinion or advisory letter issued by the IRS; (iv) the actuarial report, if required under ERISAstatement of assets and liabilities, with respect to each such Plan and annual nondiscrimination testing results for the last two three most recently completed plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofyears; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 summary plan description and any summaries of material modifications thereto; (vi) a summary of the Codematerial terms of any Company Benefit Plan that is not in writing; and (vii) any filings, applications or submissions under the IRS’ Voluntary Correction Program or the Department of Labor’s Delinquent Filer Voluntary Compliance Program or the Voluntary Fiduciary Correction Program.
(b) The Company and its Subsidiaries have operated and administered each of the Company Benefit Plans in accordance with their terms and all the provisions of Laws and regulations applicable to the Company Benefit Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof with respect to the Company Benefit Plans have been timely paid or accrued by the Company and its Subsidiaries as applicable. The Company and its Subsidiaries have satisfied all reporting and disclosure requirements under the Code and ERISA that are applicable to the Company Benefit Plans. No liability under Title IV event or condition exists which would reasonably be expected to subject the Company or any of its Subsidiaries to Liability in connection with the Company Benefit Plans or any plan, program, or policy sponsored or contributed to by any of their respective ERISA Affiliates other than the provision of benefits thereunder in the ordinary course. With respect to each applicable Company Benefit Plan, (i) there are no pending or, to the Knowledge of the Company, threatened actions which have been asserted or instituted and which would reasonably be expected to result in any Liability of the Company or any of its Subsidiaries (other than routine claims for benefits payable in the ordinary course); (ii) there are no audits, inquiries or Proceedings pending or threatened by any governmental authority; and (iii) there has been incurred by no breach of fiduciary duty (including violations under Part 4 of Subtitle B of Title I of ERISA) which has resulted or would reasonably be expected to result in material Liability to the Company, any Company Subsidiary Subsidiary, or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISAtheir respective employees.
(c) No Plan subject to In no event will the minimum funding requirements execution and delivery of section 412 this Agreement or any other related agreement, the consummation of the Code Merger or section 302 the transactions contemplated hereby or thereby, or the Company Stockholder Approval (either alone or in conjunction with any other event, such as termination of ERISA employment) result in, cause the accelerated vesting, exercisability, funding or delivery of, or increase the amount or value of, any material payment or benefit to any current or former employee, officer or director of the Company or any trust established thereunder has incurred of its Subsidiaries or any "accumulated funding deficiency" (as defined beneficiary or dependent thereof or result in section 302 of ERISA and section 412 a limitation on the right of the Code)Company or any of its Subsidiaries to amend, whether merge, terminate or not waived, as receive a reversion of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of assets from any such Company Benefit Plan or otherwise) on or prior to the date hereof have been timely maderelated trust.
(d) Except as set forth in Section 5.17(f4.12(d) of the Company Disclosure Letter, no Schedule identifies each Company Benefit Plan that is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" a “qualified plan” within the meaning of section Section 401(a) of the Code or is intended to be similarly qualified or registered under applicable foreign law (collectively, the “Company Qualified Plans”). Each Company Qualified Plan that is intended to be tax-qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service as IRS that it is entitled to rely upon, and its qualification accompanying trust is exempt from taxation under Section 501(a) of the Code, and, to the Knowledge of the Company's knowledge, no amendment fact or event has been made to any such Plan occurred since the date of such letter that would reasonably be expected to jeopardize the tax-qualified status of any such Company Qualified Plan or the tax-exempt status of its accompanying trust.
(e) Except as otherwise provided in Section 4.12(e) of the Company Disclosure Schedule, no Company Benefit Plan provides health benefits (whether or not insured) with respect to employees or former employees (or any of their beneficiaries) of the Company or any of its Subsidiaries after retirement or other termination of service (other than coverage or benefits (A) required to be provided under Part 6 of Subtitle B of Title I of ERISA or any other similar applicable Law or (B) the full cost of which is likely to result in borne by the disqualification employee or former employee (or any of such Plantheir beneficiaries)).
(f) Each Except as otherwise provided in Section 4.12(f) of the Plans Company Disclosure Schedule, neither the Company nor any of its Subsidiaries or any of their respective ERISA Affiliates sponsor, contribute to or have any Liabilities with respect to any Company Benefit Plan that: (i) is subject to Title IV or Section 302 of ERISA or Section 412, 430, 431 or 432 of the Code; (ii) is a Multiemployer Plan; or (iii) is a multiple employer plan that is described in Section 413 of the Code. No “reportable event,” as such term is defined in ERISA Section 4043(c), has occurred or is continuing with respect to any Company Benefit Plan. No Company Benefit Plan that is or was subject to Title IV of ERISA has been operated terminated and administered in no proceeding has been initiated to terminate any such plan. Neither the Company nor any of its Subsidiaries or any of their respective ERISA Affiliates has incurred or reasonably expects to incur, any Liability to the PBGC with respect to any Company Benefit Plan, except for required premium payments, which payments have been timely made when due. The market value of assets under each Company Benefit Plan that is subject to Title IV of ERISA or Section 412 of the Code equals or exceeds the present value of all respects vested and nonvested Liabilities thereunder determined in accordance with PBGC methods, factors and assumptions applicable lawsto a plan terminating on the date of determination. No Company Benefit Plan that is subject to Part 3 of Subtitle B of Title I of ERISA has incurred any “accumulated funding deficiency” (within the meaning of Section 302 of ERISA), including, but whether or not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Planwaived.
(g) Except Neither the Company nor any of its Subsidiaries or any of their respective ERISA Affiliates has incurred or expects to incur any “withdrawal liability” (as expressly provided defined in ERISA Section 4201) under or with respect to any Company Benefit Plan that is a Multiemployer Plan.
(h) No Company Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee, contractor or other service provider residing or working outside the United States.
(i) There is no Contract, agreement, plan or arrangement to which the Company or any Subsidiary of the Company is a party, including but not limited to the provisions of this Agreement, that, individually or collectively, would give rise to the payment of any exhibit hereto, a amount that would not be deductible pursuant to Section 162(m) of the Code.
(j) No payment pursuant to any Company Benefit Plan or Company Benefit Arrangement between Company or a Subsidiary and any “service provider” (as such term is defined in Section 409A of the Code and the United States Treasury Regulations and IRS guidance thereunder), including, without limitation, the grant, vesting or exercise of any equity option, would subject any Person to a tax pursuant to Section 409A of the Code, whether pursuant to the consummation of the Merger, any other transaction contemplated by this Agreement or otherwise.
(k) Each Company Benefit Plan, Company Benefit Arrangement, 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 been operated in compliance with Section 409A of the Code, its Treasury regulations, and any applicable administrative guidance relating thereto; and no additional tax under Section 409A(a)(1)(B) of the Code has been or is reasonably expected to be incurred by a participant in any such Company Benefit Plan, Company Benefit Arrangement, or other Contract, plan, program, agreement, or arrangement. Neither the Company nor any ERISA Affiliate is a party to, or otherwise agreed obligated under, any Contract, agreement, plan or arrangement that provides for the gross-up of taxes imposed by Section 409A(a)(1)(B) of the Code.
(l) Except as set forth on Section 4.12(l) of the Company Disclosure Schedule, no amount that could be received (whether in writing by Parent cash or property or the vesting of property), as a result of the execution and Companydelivery of this Agreement or any other related agreement, the consummation of the transactions contemplated hereby or thereby, or the stockholder approval of the Merger (either alone or in conjunction with any other event, such as termination of employment), by any employee, officer or director of the Company or any Subsidiary of the Company who is a “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) under any Company Benefit Plan, Company Benefit Arrangement or otherwise could be characterized as a “parachute payment” (as defined in Section 280G(b)(2) of the Code). The Company has made available to Parent all necessary information to determine, as of the date hereof, the estimated maximum amount that could be paid to each disqualified individual in connection with the transactions contemplated by this Agreement will not
under all employment, severance and termination agreements, other compensation arrangements, Company Benefit Arrangements and Company Benefit Plans currently in effect, assuming that the individual’s employment with the Company is terminated immediately after the Effective Time. The Company has made available to Parent in the Dataroom (i) entitle any current or former employee or officer of the grant dates, exercise prices and vesting schedules applicable to each Company or any Company Subsidiary Option granted to severance pay, unemployment compensation or any other payment, or
the individual; (ii) accelerate the time “base amount” (as defined in Section 280G(b)(e) of payment or vesting, or increase the Code) for each such individual as of the date of this Agreement; and (iii) the maximum additional amount of compensation due any such employee or officer.
(h) With respect that the Company has an obligation to pay to each Plan that is funded wholly or partially through an insurance policy, disqualified individual to reimburse the Company and the Company Subsidiaries do not have disqualified individual for any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability excise tax imposed under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 4999 of the Code other than with respect to the disqualified individual’s excess parachute payments (including any such liability taxes, interest or tax that would not, individually or in penalties imposed with respect to the aggregate, have a Company Material Adverse Effectexcise tax).
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect Except as disclosed in the Company SEC Reports filed prior to each material bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance the date of this Agreement or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (as set forth in Section 3.13 of the "Plans"), currently maintained or contributed to or required to be contributed to by Company Disclosure Letter:
(i) Companyto the knowledge of the Company and its Subsidiaries, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" no prohibited transaction within the meaning of Section 4001 406 or 407 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), for or Section 4975 of the benefit of any employee or former employee of Company, Code with respect to any Company Subsidiary or any Company ERISA Affiliate, Company Employee Benefit Plan (as defined below) has heretofore delivered or will after occurred during the five-year period preceding the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto)this Agreement;
(ii) a copy there is no outstanding liability (except for premiums due) under Title IV of the annual report and actuarial report, if required under ERISA, ERISA with respect to each such Plan for the last two plan years ending prior to the date hereofany Company Employee Benefit Plan;
(iii) a copy neither the Pension Benefit Guaranty Corporation (the "PBGC"), the Company nor any of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect its Subsidiaries has instituted proceedings to such terminate any Company Employee Benefit Plan;
(iv) if full payment has been made of all amounts which the Plan is funded through a trust Company or any other third party funding vehicle, of its Subsidiaries were required to have paid as a copy contribution to the Company Employee Benefit Plans as of the trust or other funding agreement (including all amendments thereto) and last day of the latest financial statements with respect to most recent fiscal year of each of the last reporting period Company Employee Benefit Plans ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of this Agreement, and none of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder Employee Benefit Plans has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each such Company Employee Benefit Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.this Agreement;
(dv) Except as set forth in Section 5.17(f) the value on a termination basis of accrued benefits under each of the Company Disclosure Letter, no Plan Employee Benefit Plans which is a "multiemployer pension plan," as defined in section 3(37) subject to Title IV of ERISA, nor is any Plan a plan described based upon the actuarial assumptions used for funding purposes in Section 4063(a) 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 ERISA.its latest valuation date, exceed the then current value of the assets of such Company Employee Benefit Plan;
(evi) Each Plan each of the Company Employee Benefit Plans which is intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable been determined by the IRS to be so qualified and such determination letter from has not been modified, revoked or limited;
(vii) each of the Internal Revenue Service as to Company Employee Benefit Plans is, and its qualification and, to Company's knowledge, no amendment administration is and has been made to any such Plan since during the five-year period preceding the date of this Agreement in all material respects in compliance with, and none of the Company nor any of its Subsidiaries has received any claim or notice that any such letter that Company Employee Benefit Plan is likely not in compliance with, all applicable laws and orders and prohibited transaction exemptions, including, without limitation, the requirements of ERISA;
(viii) to result the knowledge of the Company and its Subsidiaries, there are no material pending, threatened or anticipated claims involving any of the Company Employee Benefit Plans;
(ix) to the knowledge of the Company and its Subsidiaries, during the five-year period preceding the date of this Agreement, none of the Company or any of its Subsidiaries has entered into any transaction which could subject such entity to liability under Section 302(c)(ii), 22 4062, 4063, 4064, or 4069 of ERISA and no "reportable event" within the meaning of Section 4043 of ERISA has occurred with respect to any Company Employee Benefit Plan;
(x) none of the Company or any of its Subsidiaries is in default in performing any of its contractual obligations under any of the disqualification Company Employee Benefit Plans or any related trust agreement or insurance contract;
(xi) there are no material outstanding liabilities of any Company Employee Benefit Plan other than liabilities for benefits to be paid to participants in such Company Employee Benefit Plan and their beneficiaries in accordance with the terms of such Company Employee Benefit Plan; and
(xii) none of the Company or any of its Subsidiaries 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.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(gb) Except as expressly provided set forth in Section 3.13 of the Company Disclosure Letter, neither the execution and delivery of this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, Agreement nor the consummation of the transactions contemplated by this Agreement hereby constitutes a change in control or has or will not
(i) entitle any current or former employee or officer of Company or accelerate benefits under any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Employee Benefit Plan.
(ic) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.As used herein:
Appears in 1 contract
Samples: Merger Agreement (Geodynamics Corp)
Employee Benefit Plans; ERISA. (a) With respect to each material 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans")arrangement, currently maintained or contributed to or required to be contributed to by (i) Company, Rent-Way or (ii) any Company Subsidiary or Rent-Way Subsidiaries (iii) any trade or business, whether or not incorporated (a the "Company ERISA AffiliateRent-Way Plans"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary Rent-Way or any Company ERISA AffiliateRent-Way Subsidiary, Company Rent-Way has heretofore delivered or will after the date hereof make available to Parent, upon request, HCI true and complete copies of each of the following documents:
: (i) a copy of each written Rent-Way Plan that is in writing (including all written amendments thereto);
; (ii) a copy of the annual report and actuarial report, if required under the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder ("ERISA"), with respect to each such Rent-Way Plan for the last two plan years ending prior to the date hereof;
; (iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Rent-Way Plan;
; (iv) if the Rent-Way Plan is funded through a trust or any other third party Party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
and (v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Rent-Way Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by CompanyRent-Way, any Company Subsidiary Rent-Way Subsidiary, or any Company trade or business, whether or not incorporated, that together with Rent-Way is a "single employer" within the meaning of section 4001 of ERISA Affiliate (any "Rent-Way ERISA Affiliate") that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or Rent-Way, any Company Rent-Way Subsidiary or any Company Rent-Way ERISA Affiliate of incurring a liability under such Title which will, would individually or in the aggregate, aggregate have a Company Rent-Way Material Adverse Effect, Effect or give rise to a lien under Title IV of ERISA.
(c) No Rent-Way Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Rent-Way Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Rent-Way Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no No Rent-Way Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Rent-Way Plan a plan described in Section 4063(a) of ERISA.
(e) Each Rent-Way Plan intended to be "qualified" within the meaning of section 401(a) of the Code either, (i) has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledgethe knowledge of Rent-Way, no amendment has been made to any such Rent-Way Plan since the date of such letter that is likely to result in the disqualification of such PlanRent-Way Plan or (ii) is a standardized prototype plan, the form of which has been approved by the Internal Revenue Service.
(f) Each of the Rent-Way Plans has been operated and administered in all respects in accordance with applicable lawsApplicable Law, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Rent-Way Plans that would not, not individually or in the aggregate, aggregate have a material adverse effect on any such Plan.Rent-Way Material Adverse Effect. 10 12
(g) Except as expressly provided in Neither the execution and delivery of this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, Agreement nor the Merger nor the consummation of any of the other transactions contemplated by this Agreement will not
will: (i) entitle any current or former officer, director, employee or officer consultant of Company or any Company Subsidiary Rent-Way to severance pay, unemployment compensation or any other payment, or
or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such officer, director, employee or officerconsultant.
(h) With respect to each Rent-Way Plan that is funded wholly or partially through an insurance policy, the Company Rent-Way and the Company Rent-Way Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing Closing other than any such liability that, that individually or in the aggregate, aggregate would not have a material adverse effect on the applicable PlanRent-Way Material Adverse Effect.
(i) There are no pending or, to the Company's knowledgeknowledge of Rent-Way, threatened claims by or on behalf of any of the Rent-Way Plans, by any employee or beneficiary covered under any such Rent-Way Plan involving any such Rent-Way Plan (other than routine claims for benefits), other than any such claims that would not, not individually or in the aggregate, aggregate have a Company Rent-Way Material Adverse Effect.
(j) Neither Company Rent-Way nor any Company Rent-Way Subsidiary or, to the Company's knowledgeknowledge of Rent-Way, any Company Rent-Way ERISA Affiliate, any of the ERISA Rent-Way Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company Rent-Way or any Company Rent-Way Subsidiary or, to Parent's knowledgethe knowledge of Rent-Way, any Company Rent-Way ERISA Affiliate, any of the ERISA Rent-Way Plans, any such trust trust, or any trustee or administrator thereof, or any party dealing with the ERISA Rent-Way Plans or any such trust is likely to be subject to either a civil liability under Section section 409 of ERISA or Section section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code Code, other than any such liability or tax that would not, not individually or in the aggregate, aggregate have a Company Rent-Way Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to Section 4.9(a) of the Disclosure Schedule contains a true and complete list of each material 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, agreement agreement, fund, policy, practice or arrangement, and each other including all employee benefit planplans within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, program, agreement as amended (including but not limited to employment agreements) or arrangement (the "PlansERISA"), currently sponsored, maintained or contributed to by the Company (or required to be contributed to for which the Company makes payroll deductions) or by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a an "Company ERISA Affiliate"), that together with the Company is would be deemed a "single employer" within the meaning of Section section 4001 of ERISA, for the benefit of any employee or former employee of Companythe Company and their dependents, or any ERISA Affiliate (collectively, the "Plans"). Section 4.9(a) of the Disclosure Schedule identifies each of the Plans that is an "employee benefit plan," as defined in section 3(3) of ERISA (collectively, the "ERISA Plans"). Neither the Company nor any Company Subsidiary has, or has had, any deferred compensation, stock purchase, pension or retirement plan (other than a 401(k) plan) or any Company ERISA Affiliate"defined benefit plan" as defined in Section 3(35) of ERISA.
(b) With respect to each Plan, the Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, Parent true and complete copies of each of the following documents:
(i) a copy of each the Plan that is in writing (document, including all amendments thereto);
(ii) a copy of the annual report and actuarial reportfor the most recent three plan years, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if Description (as defined in ERISA) required under ERISA, ERISA with respect to such Planthereto, including all summaries of material modifications;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofthereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 401(a) of the Code.
(b) No liability under Title IV Code or copies of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISApending determination letter requests.
(c) No Plan subject to the minimum funding requirements of section 412 of Lien imposed under the Code or section 302 of ERISA exists or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior is to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) knowledge of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) likely to be imposed on account of ERISA, nor is any Plan a plan described in Section 4063(a) ERISA Plan. The form of ERISA.
(e) Each each ERISA Plan intended to be "qualified" within the meaning of section 401(a) of the Code has received a favorable determination letter from been determined by the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment be so qualified (or timely application has been made to any such Plan therefor); no event has occurred since the date of such letter determination that is likely would adversely affect such qualification for which the cost of correction would have a Material Adverse Effect on the Company; and each trust maintained thereunder has been determined by the Internal Revenue Service to result in the disqualification of such Plan.
(fbe exempt from taxation under section 501(a) Each of the Plans Code. Except as expressly disclosed in Section 4.10(b) of the Disclosure Schedule, each Plan has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.in
Appears in 1 contract
Employee Benefit Plans; ERISA. (aA) With respect to each material of the 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement of the Company and the Company's Subsidiaries (the "Company Plans") in force on or after December 30, 1995, except for multi-employer plans as defined in Section 3(37)(A) of the Employee Retirement Income Security Act of 1974, as amended, and any regulations or published rulings promulgated or issued thereunder ("ERISA"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, Parent true and complete copies of each of the following documents:
: (i) a copy of each Plan that is in writing the Company Plans (including all amendments thereto);
, (ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan of the Company Plans that is an "employee benefit plan," as that term is defined in Section 3(3) of ERISA (the "Company ERISA Plans"), for the last two plan years ending prior to the date hereof;
years, (iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, ERISA with respect to such Plan;
the Company ERISA Plans, (iv) if the Plan is Company Plans are funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
thereof, and (v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Company ERISA Plan intended to qualify under section 401 Section 401(a) of the Code.
(bB) No liability under Title IV of ERISA has been incurred by the Company, any Company Subsidiary or any company that is an affiliate of the Company under ERISA (a "Company ERISA Affiliate Affiliate") since the effective date of ERISA that has not been satisfied in full when duefull, and no condition exists that presents a material risk to Company or the Company, any Company Subsidiary or any Company ERISA Affiliate of incurring a any liability under such Title which will(other than liability for premiums due to the Pension Benefit Guarantee Corporation). To the extent this representation applies to Sections 4064, individually 4069 or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under 4204 of Title IV of ERISA, it is made not only with respect to the Company ERISA Plans but also with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which the Company, a Company Subsidiary or a Company ERISA Affiliate made, or was required to make, contributions during the five-year period ending on the date of this Agreement.
(cC) With respect to each Company ERISA Plan which is subject to Title IV of ERISA, the present value of accrued benefits under such plan, based upon the actuarial assumptions used for financial reporting purposes in either the most recent actuarial report prepared by such plan's actuary with respect to such plan or in information disclosed to the Company by a multiemployer plan as defined in Section 3(37)(A) of ERISA, did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(D) No Company ERISA Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such each Company ERISA Plan ended prior to the date hereof; of this Agreement, and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Company ERISA Plan or otherwise) on or prior to the date hereof of this Agreement have been timely made.
(dE) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no No ERISA Plan is a "multiemployer multi-employer pension plan," as defined in section 3(37Section 3(37)(A) of ERISA, nor is any Company ERISA Plan a plan described in Section 4063(a) of ERISA.
(eF) Each Plan intended to be "qualified" within the meaning of section 401(aExcept for any multiemployer plan as defined in Section 3(37)(A) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification andERISA, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each each of the Company Plans has been operated and administered in all material respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, Code except for any failure requirements which could not reasonably be expected to so operate or administer such Plans that would not, have individually or in the aggregate, have aggregate a material adverse effect on any such PlanCompany Material Adverse Effect.
(gG) Except as expressly provided in this AgreementNo amounts payable under the Company Plans or any other contract, arrangement or agreement will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code.
(H) No Company Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees of the Company, any exhibit heretoCompany Subsidiary or any Company ERISA Affiliate beyond such employees' retirement or other termination of service, a Plan other than (i) coverage mandated by applicable law, (ii) death benefits or retirement benefits under any "employee pension plan", as otherwise agreed that term is defined in writing by Parent and Section 3(2) of ERISA, (iii) deferred compensation benefits accrued as liabilities on the books of the Company, any Company Subsidiary or any Company ERISA Affiliate or (iv) benefits the full cost of which is borne by such employees or their beneficiaries.
(I) The consummation of the transactions contemplated by this Agreement will not
not (i) entitle any current or former employee or officer of the Company, any Company Subsidiary or any Company Subsidiary ERISA Affiliate to severance pay, unemployment compensation or any other payment, or
except as expressly provided in this Agreement, or (ii) accelerate the time of payment or vesting, or increase the amount amount, of any compensation due any such employee or officer.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to Section 4.9(a) of the Company Disclosure Letter contains a true and complete list of each material “employee benefit plan” as defined in Section 3(3) of ERISA (defined below) (“ERISA Plan”) and each bonus, deferred compensation, incentive compensation, stock purchase, stock option, stock award, severance or termination paybenefit, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, each employment, retention or severance agreement or arrangement which cannot be terminated in fewer than three months without liability or without liability exceeding the greater of or one week of salary for each year of service or one month of salary and each other material employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans")arrangement, currently or within the preceding 5 years sponsored, maintained or contributed to by the Company or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company an “ERISA Affiliate"”), that together with the Company is would be deemed a "“single employer" within the meaning ” for purposes of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for the benefit of any employee or former employee or director of Company, any the Company Subsidiary or any Company ERISA AffiliateAffiliate employed in the United States (the “Plans”).
(b) With respect to each Plan, the Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, Purchaser true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto)the Plan;
(ii) a copy of the most recent annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if Description required under ERISA, ERISA with respect to such Planthereto;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofthereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 Section 401(a) of the Code and each voluntary employees’ benefit association intended to qualify under Section 501(c)(9) of the Code.
(bc) No liability under Title IV of ERISA has been incurred by Company, any the Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when duefull, and no condition exists (or would exist in the case of any Plan termination or withdrawal by any employer from the Plan) that presents a material risk to the Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which willTitle, individually or other than liability for contributions due in the aggregateordinary course and premiums due the Pension Benefit Guaranty Corporation (“PBGC”) (which contributions and premiums have been paid when due), except for such liabilities that would not have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to Effect on the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely madeCompany.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure LetterNo “ERISA Plan”, no Plan is a "“multiemployer pension plan," ” as defined in section Section 3(37) of ERISA, nor is any ERISA Plan a plan described in Section 4063(a) of ERISA.
(e) No ERISA Plan or any trust established thereunder has incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA and Section 412 of the Code, whether or not waived, or any liens under those sections of ERISA and the Code, as of the last day of the most recent fiscal year of each ERISA Plan ended prior to the Closing Date or with respect to the year following such fiscal year. Each ERISA Plan intended to be "“qualified" ” within the meaning of section Section 401(a) of the Code has received a favorable determination letter from been determined by the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment be so qualified (or timely application has been made to any such Plan therefor); no event has occurred before or since the date of such letter determination that is likely would materially adversely affect such qualification; and each trust maintained thereunder has been determined by the Internal Revenue Service to result in be exempt from taxation under Section 501(a) of the disqualification Code. All contributions or other payments required to have been made by Company and its Subsidiaries to or under any Plan by Applicable Law or the terms of such Plan.
(f) Plan have been timely and properly made. Each of the Plans Plan has been operated and administered in all material respects in accordance with applicable lawsits terms and Applicable Law, including, including but not limited to, to ERISA and the Code, Code except for any where a failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect Material Adverse Effect on the applicable Plan.
(i) Company. There are no pending orpending, or to the knowledge of the Company's knowledge, threatened threatened, material claims by or on behalf of any of the PlansPlan, by any employee or beneficiary covered under any such Plan Plan, or otherwise involving any such Plan (other than routine claims for benefits).
(f) With respect to each Plan, other than on or following the Effective Date, the Surviving Corporation or the Purchaser or both shall have the right to terminate and amend the Plan at any time, and any such claims termination or amendment shall not result in any material increased cost.
(g) With respect to each Plan, all required filings with the government and all required notices to the participants of the Plan have been timely made.
(h) With respect to each Plan, there has been no violation of Sections 401 through 412 of ERISA, and no violation that would not, individually result in tax or penalties under Section 502 of ERISA or Section 4975 of the Code.
(i) The consummation of the transaction contemplated in this Agreement will not result in the aggregatepayment, have a Company Material Adverse Effectvesting or acceleration of any benefit.
(j) Neither Company nor any Company Subsidiary orWith respect to each Plan, no reportable event (as defined in Section 4043 of ERISA) has occurred.
(k) Except to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability extent required under Section 409 Sections 601 et seq. of ERISA or and Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 4980B of the Code other than (“COBRA”) no Plan provides for health or welfare benefits to any retired or former employee and there is no such benefit or payment to any such liability employee of the Company and its Subsidiaries or obligation to pay such benefit or make such payment.
(l) The Company and its Subsidiaries have complied with COBRA and the Health Insurance Portability and Accountability Act of 1996.
(m) No payment that is owed or may become due to any director, officer, employee, or agent of the Company or its Subsidiaries will be non-deductible to them or subject to tax under Section 280G or Section 4999 of the Code, and no requirement to “gross up” or otherwise compensate any such individual exists because of such a tax.
(n) The Company and its Subsidiaries have not violated the Worker Adjustment and Retraining Notification Act or any similar law.
(o) Each Subsidiary of the Company that would notemploys personnel in Australia:
(i) is not a party to any agreement or arrangement with any union or industrial organization in respect of superannuation benefits for any of its employees or sub-contractors;
(ii) has complied with its obligations under agreements with its employees and sub-contractors in respect of superannuation benefits in all material respects;
(iii) is only obliged to make employer contributions to the funds to which the employee contributions are made on behalf of each of its employees and sub-contractors at the relevant statutory rate per annum of their respective superannuation salaries in accordance with the Superannuation Guarantee (Administration) Xxx 0000 (Cth) (“SGAA”) and other associated Applicable Laws;
(iv) only contributes to, individually or and only has an obligation to make payments to superannuation funds which only provide accumulation benefits to its employees and sub-contractors;
(v) confirms that to the knowledge of the Company, the funds to which the employee contributions are made by such Subsidiary have satisfied all relevant Applicable Laws governing superannuation funds in the aggregateall material respects, and in particular, have been complying superannuation funds within the meaning of the Superannuation Industry (Supervision) Xxx 0000 (Cth) (“SIS”) and have otherwise been administered and managed by the trustee company in a Company Material Adverse Effectmanner that complies with the SIS in all material respects;
(vi) has complied in all material respects with all of its obligations, duties and liabilities under the governing rules of the funds to which employee contributions are made by such Subsidiary including making all contributions to the funds required to be made under their rules; and
(vii) has in all material respects made contributions to superannuation funds as required by any Applicable Law or agreement in respect of all employees (and anyone considered an employee for the purposes of the SGAA, including contributions required to be made in accordance with the SGAA to ensure that it incurs no liability for superannuation guarantee charge.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to Section 4.9(a) of the Company Disclosure Letter contains a true and complete list of each material "employee benefit plan" as defined in Section 3(3) of ERISA (defined below) ("ERISA Plan") and each bonus, deferred compensation, incentive compensation, stock purchase, stock option, stock award, severance or termination paybenefit, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, each employment, retention or severance agreement or arrangement which cannot be terminated in fewer than three months without liability or without liability exceeding the greater of or one week of salary for each year of service or one month of salary and each other material employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans")arrangement, currently or within the preceding 5 years sponsored, maintained or contributed to by the Company or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a an "Company ERISA Affiliate"), that together with the Company is would be deemed a "single employer" within the meaning for purposes of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), for the benefit of any employee or former employee or director of Company, any the Company Subsidiary or any Company ERISA AffiliateAffiliate employed in the United States (the "Plans").
(b) With respect to each Plan, the Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, Purchaser true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto)the Plan;
(ii) a copy of the most recent annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if Description required under ERISA, ERISA with respect to such Planthereto;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofthereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 Section 401(a) of the Code and each voluntary employees' benefit association intended to qualify under Section 501(c)(9) of the Code.
(bc) No liability under Title IV of ERISA has been incurred by Company, any the Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when duefull, and no condition exists (or would exist in the case of any Plan termination or withdrawal by any employer from the Plan) that presents a material risk to the Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which willTitle, individually or other than liability for contributions due in the aggregateordinary course and premiums due the Pension Benefit Guaranty Corporation ("PBGC") (which contributions and premiums have been paid when due), except for such liabilities that would not have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to Effect on the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely madeCompany.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure LetterNo "ERISA Plan", no Plan is a "multiemployer pension plan," as defined in section Section 3(37) of ERISA, nor is any ERISA Plan a plan described in Section 4063(a) of ERISA.
(e) No ERISA Plan or any trust established thereunder has incurred any "accumulated funding deficiency" as defined in Section 302 of ERISA and Section 412 of the Code, whether or not waived, or any liens under those sections of ERISA and the Code, as of the last day of the most recent fiscal year of each ERISA Plan ended prior to the Closing Date or with respect to the year following such fiscal year. Each ERISA Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter from been determined by the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment be so qualified (or timely application has been made to any such Plan therefor); no event has occurred before or since the date of such letter determination that is likely would materially adversely affect such qualification; and each trust maintained thereunder has been determined by the Internal Revenue Service to result in be exempt from taxation under Section 501(a) of the disqualification Code. All contributions or other payments required to have been made by Company and its Subsidiaries to or under any Plan by Applicable Law or the terms of such Plan.
(f) Plan have been timely and properly made. Each of the Plans Plan has been operated and administered in all material respects in accordance with applicable lawsits terms and Applicable Law, including, including but not limited to, to ERISA and the Code, Code except for any where a failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect Material Adverse Effect on the applicable Plan.
(i) Company. There are no pending orpending, or to the knowledge of the Company's knowledge, threatened threatened, material claims by or on behalf of any of the PlansPlan, by any employee or beneficiary covered under any such Plan Plan, or otherwise involving any such Plan (other than routine claims for benefits).
(f) With respect to each Plan, other than on or following the Effective Date, the Surviving Corporation or the Purchaser or both shall have the right to terminate and amend the Plan at any time, and any such claims termination or amendment shall not result in any material increased cost.
(g) With respect to each Plan, all required filings with the government and all required notices to the participants of the Plan have been timely made.
(h) With respect to each Plan, there has been no violation of Sections 401 through 412 of ERISA, and no violation that would not, individually result in tax or penalties under Section 502 of ERISA or Section 4975 of the Code.
(i) The consummation of the transaction contemplated in this Agreement will not result in the aggregatepayment, have a Company Material Adverse Effectvesting or acceleration of any benefit.
(j) Neither Company nor any Company Subsidiary orWith respect to each Plan, no reportable event (as defined in Section 4043 of ERISA) has occurred.
(k) Except to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability extent required under Section 409 Sections 601 et seq. of ERISA or and Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 4980B of the Code other than ("COBRA") no Plan provides for health or welfare benefits to any retired or former employee and there is no such benefit or payment to any such liability employee of the Company and its Subsidiaries or obligation to pay such benefit or make such payment.
(l) The Company and its Subsidiaries have complied with COBRA and the Health Insurance Portability and Accountability Act of 1996.
(m) No payment that is owed or may become due to any director, officer, employee, or agent of the Company or its Subsidiaries will be non-deductible to them or subject to tax under Section 280G or Section 4999 of the Code, and no requirement to "gross up" or otherwise compensate any such individual exists because of such a tax.
(n) The Company and its Subsidiaries have not violated the Worker Adjustment and Retraining Notification Act or any similar law.
(o) Each Subsidiary of the Company that would notemploys personnel in Australia:
(i) is not a party to any agreement or arrangement with any union or industrial organization in respect of superannuation benefits for any of its employees or sub-contractors;
(ii) has complied with its obligations under agreements with its employees and sub-contractors in respect of superannuation benefits in all material respects;
(iii) is only obliged to make employer contributions to the funds to which the employee contributions are made on behalf of each of its employees and sub-contractors at the relevant statutory rate per annum of their respective superannuation salaries in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth) ("SGAA") and other associated Applicable Laws;
(iv) only contributes to, individually or and only has an obligation to make payments to superannuation funds which only provide accumulation benefits to its employees and sub-contractors;
(v) confirms that to the knowledge of the Company, the funds to which the employee contributions are made by such Subsidiary have satisfied all relevant Applicable Laws governing superannuation funds in the aggregateall material respects, and in particular, have been complying superannuation funds within the meaning of the Superannuation Industry (Supervision) Xxx 0000 (Cth) ("SIS") and have otherwise been administered and managed by the trustee company in a Company Material Adverse Effectmanner that complies with the SIS in all material respects;
(vi) has complied in all material respects with all of its obligations, duties and liabilities under the governing rules of the funds to which employee contributions are made by such Subsidiary including making all contributions to the funds required to be made under their rules; and
(vii) has in all material respects made contributions to superannuation funds as required by any Applicable Law or agreement in respect of all employees (and anyone considered an employee for the purposes of the SGAA, including contributions required to be made in accordance with the SGAA to ensure that it incurs no liability for superannuation guarantee charge.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Santos International Holdings Pty Ltd.)
Employee Benefit Plans; ERISA. (a) With respect Section 2.11(a) of the Disclosure Schedule contains a true and complete list of the Plans (as defined below). Neither the Seller nor any ERISA Affiliate has any formal plan or commitment, whether legally binding or not, to each material create any additional Plan or modify or change any existing Plan that would affect any employee or terminated employee of the Seller or any ERISA Affiliate. For purposes of this Agreement, the term "Plan" shall mean any bonus, incentive, deferred compensation, incentive compensationinsurance, severance, termination, retention, change of control, employment, stock option, stock appreciation, stock purchase, phantom stock option, severance or termination pay, hospitalization or other medicalequity- based, life or other insuranceperformance, supplemental unemployment benefitsvacation, profit-sharing, pension, or retirement retiree benefit plan, program, agreement or arrangementarrangement (including, and each other but not limited to, any "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, program, agreement as amended (including but not limited to employment agreements) or arrangement (the "PlansERISA")), currently maintained or contributed sponsored, maintained, con- tributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary the Seller or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that business which together with Company is the Seller would be deemed a "single employer" within the meaning of Section section 4001 of ERISAERISA (each, an "ERISA Affiliate"), for the benefit of any employee current or former employee of Companythe Alexandria Business, any Company Subsidiary or any Company ERISA Affiliate, Company whether formal or informal and whether legally binding or not.
(b) Except as set forth on Section 2.11(b) of the Disclosure Schedule, with respect to each Plan, the Seller has heretofore delivered or will after to the date hereof make available to Parent, upon request, Buyer true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing thereof (including all amendments thereto)) or description of the Plan if it is not a written Plan;
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan thereto for the last two plan years ending prior to the date hereofyears;
(iii) a copy of the most recent Summary Plan Description, together with each Summary summary of Material Modificationsmaterial modifications, if required under ERISA, ERISA with respect thereto and all material written communications to such Planemployees or former employees with respect thereto;
(iv) the most recent determination letter received from the Internal Revenue Service with respect to each Plan that is intended to be qualified under section 401 of Code; and
(v) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof.
(c) There has been no (i) "reportable event" (as defined in Section 4043 of ERISA), or event described in Section 4041, 4042, 4062, 4063, 4064 or 4069 of ERISA, or (ii) termination or partial termination, withdrawal or partial withdrawal with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 any of the Code.
Plans that the Seller maintains or contributes to or has maintained or contributed to. No Plan is subject to Title IV of ERISA and the Seller has not incurred any liability (bincluding contingent liability) No liability under Title IV of ERISA has been incurred by Companywith respect to any Plan, any Company Subsidiary within the past five years ending on the last day of the most recent Plan year, as applicable, ended prior to the Closing Date.
(d) All contributions with respect to all Plans of the Seller or any Company ERISA Affiliate that are subject to Code Section 412 or ERISA Section 302 have been or will be timely made and there is no Lien under Code Section 412(n).
(e) Neither the Seller nor any ERISA Affiliate contributes to, is required to contribute to (or has not contributed to or has been satisfied required to contribute to within the past six years ending on the Closing Date) a "multiemployer plan," as such term is defined in full when dueERISA Section 3(37).
(f) Neither the Seller, and no condition exists that presents any ERISA Affiliate, any of the Plans, any trust created thereunder nor, to the best knowledge of the Seller any trustee or administrator thereof has engaged in a material risk transaction or has taken or failed to Company take any action in connection with which the Seller, any ERISA Affiliate, any of the Plans, any such trust, any trustee or administrator thereof, or any Company Subsidiary party dealing with the Plans or any Company such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) of ERISA Affiliate or a tax imposed pursuant to section 4975, 4976 or 4980B of incurring a liability under the Code, except for such Title which willinstances of noncompliance as would not, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISAEffect on the Alexandria Business.
(cg) No Plan subject to the minimum funding requirements of section 412 Each of the Code or section 302 of ERISA or any trust established thereunder Plans has incurred any "accumulated funding deficiency" (as defined been operated and administered in section 302 of all material respects in accordance with applicable laws, including but not limited to ERISA and section 412 of the Code), whether except for such instances of noncompliance as would not, individually or not waivedin the aggregate, as of have a Material Adverse Effect on the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely madeAlexandria Business.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(eh) Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter is so qualified and the trusts maintained thereunder are exempt from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(ftaxation under Section 501(a) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to Schedule 5.15 identifies each material bonusPlan by name and ERISA plan number, deferred compensation, incentive compensation, stock purchase, stock option, severance if any. The Company does not have a formal plan or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangementcommitment, and each other employee benefit plan, program, agreement (including but it has not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or businessmade an announcement of its intentions, whether or not incorporated (a "Company ERISA Affiliate")legally binding, that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of to create any employee additional Plan or former employee of Company, modify or change any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, existing Plan. A true and complete copies copy of each of the following documentshas been made available to the Buyer with respect to the Company:
(i) a copy of each written Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial reportreturns or reports (including, without limitation, reports on the Form 5500 series, including all attachments thereto), if required under ERISAERISA or the Code, with respect to each such Plan for the last two three most recent plan years ending with filing deadlines prior to the date hereofof the Agreement or for which returns have actually been prepared or filed prior to the date of the Agreement and a copy of each summary annual report with respect to each such annual report;
(iii) a copy of the most recent Summary Plan Descriptionsummary plan description, together with each Summary subsequent summary of Material Modificationsmaterial modifications, if required under ERISA, ERISA with respect to such each Plan and all other material employee communications relating to each Plan;
(iv) a copy of all written rules, regulations, procedures and interpretations for each Plan;
(v) if the a Plan is funded through a trust or any other third party funding vehiclearrangement, including insurance contracts, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof;
(vi) all contracts relating to the Plans with respect to the last reporting period ended immediately prior to the date hereof; andwhich it may have any liability, including, without limitation, insurance contracts, investment management agreements, subscription and participation agreements, administration agreements and record keeping agreements;
(vvii) the most recent determination letter received prior to the date hereof from the Internal Revenue Service that covers the entire Plan with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly intended to be qualified under Section 401(a) of the Code, each subsequent determination letter with respect to each such Plan, and complete copies of the determination letter applications (including attachments and cover letters) for each such determination letter; and
(viii) all rulings, opinion letters, information letters or partially through an insurance policy, advisory opinions issued by the Company and Internal Revenue Service or the Company Subsidiaries do not have any current liability under any such insurance policy in United States Department of Labor with respect to each Plan within the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring ten-year period prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plandate of this Agreement.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to SCHEDULE 3.11 hereto contains a true and complete list of each material bonuspension, retirement, profit sharing, deferred compensation, incentive compensationstock option, stock purchase, stock optionbonus, medical, welfare, disability, severance or termination pay, hospitalization insurance or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement incentive plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans")arrangement, currently 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 (ithe "401(k) CompanyPlan"), (ii) any Company Subsidiary or (iii) by any trade or business, whether or not incorporated (a "Company ERISA Affiliate")incorporated, that together with Company is Seller would be deemed a "single employer" within the meaning of Section 4001 of ERISAERISA (a "Company ERISA Affiliate"), for the benefit of any employee or former terminated employee of CompanySeller or any Seller ERISA Affiliate (the "Plans"). SCHEDULE 3.11 identifies each Plan that is an "employee benefit plan," within the meaning of Section 3(3) of ERISA (the "ERISA Plans").
(b) Seller does not now have, nor has it ever had, any Company Subsidiary 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 Company "multi-employer plan", as defined in Sections 3(37)(A) and 4001(a)(3) of ERISA Affiliate, Company has heretofore delivered or will after and Section 414(f) of the date hereof make available to Parent, upon request, true Code.
(c) True and complete copies of each of the following documents:
Plans and the trusts included in the 401(k) Plan have been furnished to Buyer. To the extent noT yet furnished to Buyer, there shall be furnished to Buyer within ten (i10) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy days of the annual report and actuarial report, if required under ERISAdate hereof, with respect to each of the Plans, the most recent financial statement and the most recent actuarial report prepared with respect to any of such Plan for Plans that are funded, the last two plan years ending prior to the date hereof;
most recent Internal Revenue Service (iii"service") a copy of determination letter, the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) Description and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to Annual report together with a statement setting forth any such documents which cannot be furnished; and any such documents furnished and the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 nature of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has documents which cannot been satisfied in full when due, and no condition exists that presents a material risk be furnished shall be reasonably satisfactory to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely madeBuyer.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each With respect to each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received Code, a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made received to any such the effect that the Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each qualified under Section 401 of the Plans has been operated Code and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and any trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of the Code, except for any failure to so operate and nothing has occurred or administer such Plans that would not, individually or in will occur through the aggregate, have a material adverse effect on any such Plan.
Closing Date (g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of including without limitation the transactions contemplated by this Agreement will not
(iAgreement) entitle any current which would cause the loss of such qualification or former employee exemption or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf imposition of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability penalty or tax that would not, individually or in the aggregate, have a Company Material Adverse Effectliability.
Appears in 1 contract
Samples: Asset Purchase Agreement (Outsource International Inc)
Employee Benefit Plans; ERISA. (a) With respect to Schedule 4.16 ----------------------------- hereto contains a true and complete list of each material 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Parent Plans"), currently maintained or contributed to or required to be contributed to by (i) CompanyParent, (ii) any Company Parent Subsidiary or (iii) any trade or business, whether or not incorporated (a an "Company ERISA Affiliate"), that together with Company is Parent would be deemed a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder ("ERISA"), for the benefit of any employee or former employee of CompanyParent, any Company Parent Subsidiary or any Company ERISA Affiliate. Schedule 4.16 hereto identifies each of the Parent Plans that is an "employee benefit plan," as that term is defined in Section 3(3) of ERISA (such plans being hereinafter referred to collectively as the "Parent ERISA Plans").
(b) With respect to each of the Parent Plans, Company Parent has heretofore delivered or will after the date hereof make made available to Parent, upon request, the Company true and complete copies of each of the following documents:
(i) a copy of each the Parent Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Parent Plan for the last two plan years ending prior to the date hereof;
years; (iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, ERISA with respect to such Parent Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (May & Speh Inc)
Employee Benefit Plans; ERISA. (a) With respect to Schedule 3.07(a) hereto contains a true and complete list of each material 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, agreement or arrangementarrangement in effect on the Closing Date, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (in effect on the "Plans")Closing Date, currently sponsored, maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary the Corporation or (iii) by any trade or business, whether or not incorporated (a an "Company ERISA Affiliate"), that together with Company is the Corporation would be deemed a "single employer" within the meaning of Section 4001 4001(b) (1) of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder ("ERISA"), for the benefit of any employee or former employee of Company, any Company Subsidiary the Corporation or any Company ERISA Affiliate, Company whether formal or informal and whether legally binding or not, or with respect to which the Corporation could have any liability (the "Employee Benefit Plans"). Schedule 3.07(a) identifies each of the Employee Benefit Plans that is an "employee welfare benefit plan," or "employee pension benefit plan" as such terms are defined in Sections 3(1) and 3(2) of ERISA (such plans being hereinafter referred to collectively as the "ERISA Plans").
(b) With respect to each of the Employee Benefit Plans, the Seller has heretofore delivered or will after to the date hereof make available to Parent, upon request, Purchaser true and complete copies of each of the following documents:
: (i) a copy of each the Employee Benefit Plan that is in writing (including all amendments thereto);
) and any other material documents governing the Employee Benefit Plan; (ii) a copy of the annual report and report, if required under ERISA, with respect to each such Employee Benefit Plan for the last three years; (iii) a copy of the actuarial report, if required under ERISA, with respect to each such Employee Benefit Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
three years; (iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter or opinion letter received prior to the date hereof from the Internal Revenue Service with respect to each Employee Benefit Plan that is intended to qualify be qualified under section Section 401 of the Internal Revenue Code of 1986, as amended (the "Code"), and each trust intended to be exempt from taxation within Section 501(c)(9) of the Code; and (v) a copy of all the summary plan descriptions and any summary of material modifications with respect to each Employee Benefit Plan. To the best of the Seller's knowledge, each financial or other report delivered to the Purchaser pursuant hereto is complete and accurate in all material respects and except as set forth on Schedule 3.07 (b),the Seller has received no notice that there have been any material adverse changes in the financial or other status of any Employee Benefit Plan since the date of the most recent annual report provided with respect thereto.
(bc) No material liability under Title IV of ERISA has been incurred by Companythe Corporation or, to the Seller's knowledge, any Company Subsidiary or any Company ERISA Affiliate Affiliate, since the effective date of ERISA that has not been satisfied in full when duefull, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending Corporation or, to the CompanySeller's knowledge, threatened claims by or on behalf an ERISA Affiliate, of any of the Plans, by any employee or beneficiary covered incurring a material liability under any such Plan involving any such Plan (other than routine claims for benefits)Title, other than any such claims that would notliability for premiums due the Pension Benefit Guaranty Corporation ("PBGC"), individually which payments have been or in will be made when due. Neither the aggregateCorporation, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the CompanySeller's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which Company or any Company Subsidiary or, to Parent's knowledgethe Corporation, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or trust, any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to could be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, material liability or a civil penalty assessed pursuant to Section 409, 502(l) or 502(i) of ERISA or a material tax imposed pursuant to any of Section 4975 through 4980B of the Code. To the best of the Seller's knowledge, each of the Employee Benefit Plans has been operated and administered in all material respects in accordance with applicable laws, including but not limited to ERISA and the Code and each of the ERISA Plans that is intended to be "qualified" within the meaning of Section 401(a) of the Code is so qualified.
(d) To the best of the Seller's knowledge, except as set forth on Schedule 3.07(a), no plans, agreements, understandings or arrangements exist that could result in the payment to any employee of the Corporation or any ERISA Affiliate of any money or other property rights or accelerate or provide any other rights or benefits to any such employee as a result of (i) the transactions contemplated by this Agreement (whether or not such payment, acceleration, or provision would constitute a "parachute payment", within the meaning of Section 280G of the Code, or whether or not some other subsequent action or event would be required to cause such payment, acceleration or provision to be triggered) or (ii) the severance, termination or resignation of any such employee.
(e) Except as set forth on Schedule 3.07 (a) and except with respect to "multiemployer plans" within the meaning of Section 3(37) of ERISA and with respect to such plans, to the best of the Seller's knowledge, full payment has been made of all amounts which the Corporation and any ERISA Affiliate is required, under applicable law or under any Employee Benefit Plan or any agreement related to any Employee Benefit Plan to which the Corporation or any ERISA Affiliate is a party, to have paid as contributions thereto as of the last day of the most recent fiscal year of each Employee Benefit Plan ended prior to the date hereof. Except with respect to multiemployer plans, and with respect to such plans, to the best of the Seller's knowledge, the Corporation and each ERISA Affiliate has made adequate provision for reserves in accordance with generally accepted accounting principles consistently applied ("GAAP"), to meet contributions that have not been made because they are not yet due under the terms of any Employee Benefit Plan or related agreements. Benefits under all Employee Benefit Plans are as represented and have not been increased subsequent to the date as of which documents with respect thereto have been provided to the Purchaser.
(f) There is no action, claim or demand of any kind (other than routine claims for benefits) that has been brought or threatened against any Employee Benefit Plan or the assets thereof, other than with respect to multiemployer plans, and as to such plans, the Seller represents that he has not received any notice of any such action, claim or demand of any kind, against any fiduciary of such Employee Benefit Plan, or against the Corporation or any ERISA Affiliate with respect to any Employee Benefit Plan, and neither the Corporation nor the Seller has received any notice of any investigation or administrative review that could result in the imposition on the Corporation or any ERISA Affiliate of any penalty or assessment in connection with any Employee Benefit Plan.
(g) Except as identified on Schedule 3.07 (a), the Corporation does not maintain or participate in, nor is it obligated to contribute to, any "multiemployer plan" within the meaning of Section 3(37) of ERISA. To the best of the Seller's knowledge, as of the Closing Date, no withdrawal liability would be assessed against the Corporation in the event of a Company Material Adverse Effectwithdrawal from any listed multiemployer plan. The Corporation has not been notified by the sponsor or administrator of any listed multiemployer plan that such plan is insolvent, is in reorganization or has been terminated within the meaning of Title IV of ERISA. To the best of the Seller's knowledge, all contributions to any listed multiemployer plan that were required to be made by the Corporation have been made as of the Closing Date.
(h) Except as set forth in Schedule 3.07(a), no Employee Benefit Plan, other than multiemployer plans, provides any health, life or other welfare coverage to employees of the Corporation or any ERISA Affiliate beyond termination of their employment with the Corporation or any ERISA Affiliate by reason of retirement or otherwise, other than coverage as may be required under Section 4980B of the Code or part 6 of ERISA or under the continuation provisions of the laws of any state or locality.
(i) The Corporation has filed or caused to be filed on a timely basis, all returns, material reports, statements, notices, declarations, and other documents required by any federal, state, local or foreign governmental agency (including without limitation, the Internal Revenue Service, the Department of Labor, the Pension Benefit Guaranty Corporation and the Securities and Exchange Commission) with respect to each Employee Benefit Plan sponsored or maintained by the Corporation or with respect to which the Corporation or any ERISA Affiliate has any filing obligation, except with respect to multiemployer plans, and as to such plans, neither the Corporation nor the Seller has received notice that it has not filed or caused to be filed on a timely basis, any such material returns, reports, statements, notices, declarations and other documents. The Corporation has delivered to or caused to be delivered to every participant, beneficiary and every other party entitled to such material, all material plan descriptions, returns, reports, schedules, notices, statements and similar materials, including without limitation, summary plan descriptions and reports as are required under Title I of ERISA or the Code.
(j) Prior to the Closing Date, the Corporation shall take all action necessary to have the Corporation cease to be a sponsor or participating employer as of the Closing Date with respect to all of the Employee Benefit Plans, other than those expressly identified on Schedule 3.07
(a) which plans are intended to continue to cover employees of the Corporation after the Closing Date. The Corporation has not made any commitment regarding the continuation of any Employee Benefit Plan, other than multiemployer plans, after the Closing Date and the Purchaser may, without penalty, amend, cancel, terminate or otherwise modify in any and all respects, on or after the Closing Date, any Employee Benefit Plan, other than a multiemployer plan, that it continues after the Closing Date for the benefit of its employees.
Appears in 1 contract
Samples: Stock Purchase Agreement (Compost America Holding Co Inc)
Employee Benefit Plans; ERISA. (a) Set forth on Schedule 2.11-A attached hereto is a complete list of each employee pension, profit sharing, stock bonus, stock option, other bonus/incentive, defined contribution, deferred compensation, supplemental executive retirement, hospitalization, medical, disability, life insurance, long term care, severance, deferred compensation, or other plan, fund, program or policy providing employee benefits maintained or contributed to by the Sellers, including any ERISA Affiliate of the Sellers in which any employees or former employees of the Sellers have participated or under which any of them has accrued and remains entitled to any benefits (the “Plans”).
(b) The Sellers have provided the Buyer copies of all the written Plans listed on Schedule 2.11-A attached hereto and all related current material documentation, including but not limited to: plan documents and all amendments thereto, summary plan descriptions, collective bargaining agreements that require the provision of employee benefits, trust agreements, insurance contracts, evidence of any other funding medium related to any of the Sellers’ Plans, trustee reports, custodial reports, insurance contracts fidelity bonds, and fiduciary liability policies and applications for such coverages, investment manager and investment advisory contracts, third party administration agreements, loan agreements, actuarial reports and valuations, administrative rules or guidelines, audited or unaudited financial reports or statements, asset valuation reports, liability valuation reports, agreements concerning plan mergers and/or plan to plan transfers of assets and liabilities, Internal Revenue Service (“IRS”) Form 5500s, IRS determination letters and/or private letter rulings and advisory opinions from either the DOL or PBGC sought by any of the Sellers’ Plans. The foregoing documents accurately reflect all material terms of each of the Plans.
(c) Except as set forth in Schedule 2.11-B attached hereto, the Sellers, including any ERISA Affiliate, have not made any commitment or taken any action to adopt or establish any additional Plans or to materially increase the benefits under any of the Plans.
(d) With respect to each material bonusof the Plans, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited Sellers have delivered to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, Buyer true and complete copies of the participant and beneficiary records for the Plans which accurately state the history of each current participant and beneficiary in connection with the Plans and which accurately state the benefits earned and/or owed to each person under the Sellers’ Plans.
(e) The contributions made by the Sellers with respect to each funded Plan and the amount of benefits paid from each funded Plan for the current year and the past three years are set forth in Schedule 2.11-B attached hereto. The costs of providing benefits under, and the liabilities of each non-funded Sellers’ Plan for the current year and the past three years are described in the same Schedule. All additional direct or indirect costs with respect to establishing or maintaining each of the following documentsSellers’ Plans (including, but not limited to legal, accounting, and actuarial fees and administrative costs) for the past three years are also specified on the same schedule.
(f) Except as set forth in Schedule 2.11-B attached hereto, all such Plans which are subject to ERISA and/or the Internal Revenue Code of 1986, as amended (the “Code”), comply in form and have been and currently are being operated in substantial compliance with all applicable provisions of ERISA and/or the Code, and all governmental filings required to be made during the prior three fiscal years of the Plans and participant notices relating to the Plans have been timely filed and/or distributed.
(g) Except as set forth in Schedule 2.11-B attached hereto, neither the Sellers nor any ERISA Affiliate is a contributing employer to any Multiemployer Plan, and no withdrawal liability has been incurred by or asserted against the Sellers or any ERISA Affiliate with respect to a Multiemployer Plan in which employees of the Sellers or any ERISA Affiliate participate.
(h) Except as set forth in Schedule 2.11-B attached hereto, to the Sellers’ Knowledge:
(i) for each of Sellers’ Qualified Plans and that of any ERISA Affiliate, the Sellers or the ERISA Affiliate sponsoring the Qualified Plan has obtained a copy of each Plan that is in writing (including all amendments thereto)favorable determination letter from the IRS to such effect;
(ii) a copy none of the annual report and actuarial reportdetermination letters have been revoked by the IRS, if required under ERISA, with respect to each such Plan for nor has the last two plan years ending prior IRS given any written notice to the date hereofSellers or ERISA Affiliate that it intends to revoke any such determination letter;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No no material liability under Title IV or Section 302 of ERISA has been incurred by Company, any Company Subsidiary the Sellers or any Company an ERISA Affiliate that has not been satisfied in full when duefull;
(iv) no reportable event within the meaning of Section 4043 of ERISA, or a non-exempt prohibited transaction within the meaning of Section 406 of ERISA, has occurred with respect to any Sellers’ Plan or that of an ERISA Affiliate and no excise tax has been imposed pursuant to Section 4975 of the Code in respect thereof;
(v) there are no outstanding liabilities of any of Sellers’ Plans or those of ERISA Affiliates (including unfunded benefit liabilities as defined in §4001(a)(18) of ERISA under any single employer Pension Plan), other than liabilities for administrative fees and benefits to be paid in the ordinary course to participants in Sellers’ Plans or those of ERISA Affiliates or their beneficiaries in accordance with the terms thereof, and the consummation of this transaction shall not give rise to any such liabilities;
(vi) there are no liabilities to the PBGC which have been, or are expected to be, incurred with respect to any of the Sellers’ Plans or those of ERISA Affiliates except for insurance premiums, and all insurance premiums incurred or accrued up to and including the Closing Date have been timely paid by the Sellers or an ERISA Affiliate;
(vii) except with respect to income taxes on benefits paid or provided, no income, excise (including those under Code Sections 4975, 4976, 4980B and 4980D), or other tax or penalty (federal or state) that has been waived or excused, has been paid or is owed by any person (including but not limited to any of the Sellers’ Plans, ERISA Affiliate’s Plan, any plan fiduciary, the Sellers and any ERISA Affiliate) with respect to the operations of, or any transactions with respect to, any of Sellers’ Plans, or those of ERISA Affiliates, and no condition exists action has been taken, nor has there been any failure to act, that presents a would subject any person or entity to any material risk liability to Company tax or penalty in connection with any Sellers’ Plan, or those of any ERISA Affiliate (including but not limited to any tax or penalty for the failure to withhold income taxes in connection with fringe benefits);
(viii) there are no pending, threatened or anticipated claims, other than ordinary claims for benefits, involving any of Sellers’ Plans, or those of ERISA Affiliates, including but not limited to litigation or arbitration claims by participants or beneficiaries, complaints filed by government agencies; claims with respect to any bond or any Company Subsidiary fiduciary liability or other similar insurance with regard to actions of any person in connection with the Sellers’ Plans, or those of ERISA Affiliates, or notice to any insurer under such bond or policy with regard to the Sellers’ Plans or those of ERISA Affiliates;
(ix) no fiduciary of any of the Sellers’ Plans, or those of ERISA Affiliates, has any liability for breach of fiduciary duty or any Company other failure to act or comply in connection with the administration of or investment of the assets of any of the Sellers’ Plans or those of ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.Affiliates;
(cx) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to any of the terms Sellers’ Plans and those of any such Plan or otherwise) on or prior to the date hereof ERISA Affiliates have been timely madepaid in full, including any premiums to be paid to the PBGC, and the depositing of all amounts withheld from employee compensation for pension, welfare or other benefits unto the appropriate trusts or accounts was done within the required time frames; and
(xi) all premiums for insurance coverage for each of the three previous fiscal years of the Sellers’ Plans and those of ERISA Affiliates ended before the date of this Agreement have been timely paid in full.
(di) Except as set forth in Section 5.17(f) Schedule 2.11-B attached hereto, none of the Company Disclosure LetterSellers’ Plans provides, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISAor has any obligation or commitment to provide, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended health benefits to be "qualified" within the meaning of section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary to severance pay, unemployment compensation or any other payment, or
(ii) accelerate the time of payment or vestingemployees, or increase the amount of compensation due any such employee or officer.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any dependents of the Plans, by any employee Sellers or beneficiary covered under any such Plan involving any such Plan (an ERISA Affiliate beyond their retirement or other than routine claims for benefits)termination of service, other than any such claims that would not, individually or in coverage mandated by Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the aggregate, have a Company Material Adverse EffectCode (“COBRA”).
(j) Neither Company nor any Company Subsidiary orTo the best of Sellers’ Knowledge, to the Company's knowledgeand except as set forth in Schedule 2.11-B attached hereto, any Company ERISA Affiliate, any all of the ERISA Sellers’ Plans, any trust created thereunderor those of ERISA Affiliates, which are subject to COBRA continuation coverage and the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”) have been maintained in material compliance with COBRA and HIPAA, including all notice and certification requirements.
(k) No amounts payable under the Sellers’ Plans is likely to fail to be deductible for federal income Tax purposes by virtue of §280G of the Code, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability an excise Tax under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 § 4999 of the Code Code.
(l) All deferred compensation arrangements entered into between Sellers and any officer or other than any such liability or tax that would not, individually or in employee of Sellers comply with § 409A of the aggregate, have a Company Material Adverse EffectCode.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to each material 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "“Plans"”), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "“Company ERISA Affiliate"”), that together with Company is a "“single employer" ” within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974 (“ERISA”), for the benefit of any employee or former employee of Company, Company or any Company Subsidiary and with respect to which Company or any Company ERISA AffiliateSubsidiary has any actual or contingent liability (the “Company Plans”), Company has heretofore delivered or will after the date hereof make made available to the Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Company Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Company Plan for the last two most recent plan years year ending prior to the date hereofhereof for which such reports are available;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Company Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and);
(viv) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Company Plan intended to qualify under section Section 401 of the Code;
(v) a copy of each Company Plan’s most recent Form 5500 that is required to be filed; and
(vi) a copy of the most recent financial statement, and the most recent actuarial report, if any, for each Company Plan.
(b) No liability under Title IV of ERISA has been incurred by Company, any Neither Company Subsidiary or nor any Company ERISA Affiliate that sponsors, maintains or contributes to, or has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregatepast sponsored, have a Company Material Adverse Effectmaintained or contributed to, or give rise any Plan subject to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Each Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "“qualified" ” within the meaning of section Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, and no amendment has been made to any such Company Plan since the date of such letter that Company deems is reasonably likely to result in the disqualification of such Plan.
(fd) Each of the Company Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Company Plans that would not, individually or in the aggregate, have a material adverse effect on any such PlanCompany Material Adverse Effect.
(ge) Except as expressly provided in this Agreement, any exhibit hereto, a Plan Agreement or the Company Disclosure Schedule or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not, in the absence of any other event or occurrences,
(i) entitle any current or former employee or officer of Company or any Company Subsidiary to severance pay, unemployment compensation or any other payment, specifically including any amount that would be treated as a parachute payment under Section 280G of the Code, or
(ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(if) There are no pending or, to the Company's ’s knowledge, threatened claims by or on behalf of any of the Company Plans, by any employee or beneficiary covered under any such Company Plan involving any such Company Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(jg) Neither Company nor None of Company, any Company Subsidiary or, to the Company's knowledgeSubsidiary, any Company ERISA Affiliate, any of the ERISA Company Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereofPerson, or any party dealing with the ERISA Company Plans or any such trust is likely would reasonably be expected to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax Tax imposed pursuant to section Section 4975 or 4976 of the Code Code, other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(h) Section 4.17(a) of the Company Disclosure Schedule contains a correct and complete list of each Company Plan.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to each material Section 4.10(a)(1) of the Parent Disclosure Letter contains a true and complete list of all the individual or group employee benefit and compensation plans or arrangements of any type (including, without limitation, all bonus, deferred compensationequity-based, change of control, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreementsplans described in Section 3(3) or arrangement (the "Plans"of ERISA), currently sponsored, maintained or contributed to by Parent or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate")incorporated, that which together with Company is Parent would be deemed a "“single employer" ” within the meaning of Section 4001 414(b), (c) or (m) of ERISA, for the benefit Code or Section 4001(b)(1) of any employee or former employee of Company, any Company Subsidiary or any Company ERISA (a “Parent ERISA Affiliate, Company has heretofore delivered ”) or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to which any Parent ERISA Affiliate has any obligations or liability (“Parent Benefit Plans”), and Section 4.10(a)(2) of the Parent Disclosure Letter lists each such Plan for the last two plan years ending prior 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 date hereof;
(iii) Company a true, correct and complete copy of such Parent Benefit Plan, and, to the extent applicable, trust agreements, insurance contracts and other funding vehicles, the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
Annual Reports (iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments theretoForm 5500 Series) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) accompanying schedules, summary plan 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 prior to the date hereof 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 Parent, nothing has occurred since the date of such letter to adversely affect such qualification or exemption; (ii) each Parent Benefit Plan intended has been administered in substantial compliance with its terms and applicable Law; (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 qualify act in any manner that would subject Parent or any Parent ERISA Affiliate to any liability for a breach of fiduciary duty under section 401 ERISA; (iv) no disputes are pending or, to the knowledge of Parent or any Parent ERISA Affiliate, threatened other than ordinary claims for benefits; (v) 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.
; (bvi) No all contributions and premiums due have been made on a timely basis; and (vii) each Parent Benefit Plan may be amended or terminated unilaterally by Parent at any time without any continuing liability for benefits other than benefits accrued to the date of such amendment or termination. All contributions and premiums made or required to be made under Title IV of ERISA has been incurred by Companyany Parent Benefit Plan meet the requirements for deductibility under the Code, any Company Subsidiary or any Company ERISA Affiliate that has and all contributions which are required and which have not been satisfied in full when due, and no condition exists that presents made have been properly recorded on the books of Parent or a material risk to Company or any Company Subsidiary or any Company Parent ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISAAffiliate.
(c) No Parent Benefit Plan is (i) a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA), (ii) a “multiple employer plan” (within the meaning of Section 413(c) of the Code), (iii) subject to the minimum funding requirements Title IV or Section 302 of section ERISA or Section 412 of the Code or section 302 (iv) a multiple employer welfare arrangement under Section 3(40) of ERISA. No event has occurred with respect to Parent or a Parent ERISA or Affiliate in connection with which Parent could be subject to any trust established thereunder has incurred any "accumulated funding deficiency" liability (as defined except for regular contributions and benefit payments in section 302 the ordinary course of ERISA and section 412 of the Codeplan business), whether lien or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made encumbrance with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely madeParent Benefit Plan.
(d) Except as set forth in Section 5.17(f4.10(d) of the Company Parent Disclosure Letter, (i) no Plan is a "multiemployer pension plan," 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 defined in section 3(37) of ERISA, nor is any Plan a plan described in required pursuant to Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section 401(a) 4980B of the Code has received a favorable determination letter from or Part 6 of Title I of ERISA) or any similar benefits, (ii) neither the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date execution of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, Agreement 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 Company Parent or any Company Subsidiary of its Subsidiaries to severance paybe either subject to an excise Tax or non-deductible to Parent under Sections 4999 and 280G of the Code, unemployment compensation respectively, whether or any not some other payment, or
(ii) accelerate the time of subsequent action or event would be required to cause such payment or vestingbenefit 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.
(he) With respect to each Plan that None of the Parent Benefit Plans is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior subject to the closing laws of any country other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable PlanUnited States.
(if) There are no pending orParent equity-based grants, to the Company's knowledge, threatened claims by options or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (awards outstanding other than routine claims for benefits), other than any such claims that would not, individually or in those granted under the aggregate, have a Company Material Adverse EffectParent Stock Plan.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (ai) With Except as disclosed in the Parent SEC Reports or Purchasers Disclosure Schedule, at the date hereof, Purchasers do not maintain or contribute to or have any obligation or liability to or with respect to each any material bonusemployee benefit plans, deferred compensationincluding employee benefit plans within the meaning set forth in Section 3(3) of ERISA, incentive compensationprograms, stock purchasearrangements, stock option, severance or termination pay, hospitalization practices or other medicalsimilar material arrangements for the provision of benefits (such plans, life programs, arrangements or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited practices of Purchasers being referred to employment agreements) or arrangement (as the "PlansPURCHASERS PLANS"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) but excluding any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employerMULTIEMPLOYER PLAN" within the meaning of Section 4001 3(37) of ERISA, for ERISA or a "MULTIPLE EMPLOYER PLAN" within the benefit meaning of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each Section 413(c) of the following documents:
(i) a copy Code. The Purchasers Disclosure Schedule lists all Multiemployer Plans to which any of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, them makes contributions or has any obligation or liability to make contributions. Neither Purchaser maintains or has any liability with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Descriptionany Multiple Employer Plan, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which willwhich, individually or in the aggregate, could have a Company Material Adverse Effect. Neither Purchaser 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 terms of the Purchasers Plans, under existing collective bargaining agreements or to comply with applicable law.
(ii) Except as disclosed in the Parent SEC Reports or Purchasers Disclosure Schedule, (A) 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 Purchasers Plans that could result in penalties, taxes or liabilities which, singly or in the aggregate, could have a Material Adverse Effect, (B) except for premiums due, there is no outstanding material liability, whether measured alone or give rise to a lien in the aggregate, under Title IV of ERISA.
ERISA with respect to any of the Purchasers Plans, (cC) No Plan neither the Pension Benefit Guaranty Corporation nor any plan administrator has instituted proceedings to terminate any of the Purchasers Plans subject to the minimum funding requirements Title IV of section 412 ERISA other than in a "STANDARD TERMINATION" described in Section 4041(b) of ERISA, (D) none of the Code or section 302 of ERISA or any trust established thereunder Purchasers Plans has incurred any "accumulated funding deficiencyACCUMULATED FUNDING DEFICIENCY" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the Purchasers Plans ended prior to the date hereof; and of this Agreement, (E) the current present value of all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) projected benefit obligations under each of the Company Disclosure LetterPurchasers Plans which is subject to Title IV of ERISA did not, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISAits latest valuation date, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within exceed the meaning of section 401(a) then current value of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date assets of such letter that is likely plan allocable to result such benefit liabilities by more than the amount, if any, disclosed in the disqualification Parent SEC Reports as of March 31, 1997, based upon reasonable actuarial assumptions currently utilized for such Purchasers Plan.
, (fF) Each each of the Purchasers Plans has been operated and administered in all material respects in accordance with applicable lawslaws during the period of time covered by the applicable statute of limitations, including(G) each of the Purchasers Plans which is intended to be "QUALIFIED" within the meaning of Section 401(a) of the Code has been determined by the IRS to be so qualified and such determination has not been modified, but not revoked or limited toby failure to satisfy any condition thereof or by a subsequent amendment thereto or a failure to amend, ERISA except that it may be necessary to make additional amendments retroactively to maintain the "QUALIFIED" status of such Purchasers Plans, and the Codeperiod for making any such necessary retroactive amendments has not expired, except (H) with respect to Multi-employer Plans, neither Purchaser has made or suffered a "COMPLETE WITHDRAWAL" or a "PARTIAL WITHDRAWAL," as such terms are respectively defined in Sections 4203, 4204 and 4205 of ERISA and, to the best knowledge of each Purchaser, no event has occurred or is expected to occur which presents a material risk of a complete or partial withdrawal under said Sections 4203, 4204 and 4205, (I) to the best knowledge of each Purchaser, there are no material pending, threatened or anticipated claims involving any of the Purchasers Plans other than claims for benefits in the ordinary course, (J) each Seller and its Subsidiaries have no current material liability under Title IV of ERISA, and Purchasers do not reasonably anticipate that any failure to so operate such liability will be asserted against either Purchaser, and (K) no act, omission or administer such Plans that would not, transaction (individually or in the aggregate) has occurred with respect to any Purchasers Plan that has resulted or could result in any material liability (direct or indirect) of either Purchaser under Sections 409 or 502(c)(i) or (l) of ERISA or Chapter 43 of Subtitle (A) of the Code. None of the Purchasers Plans has an "ACCUMULATED FUNDING DEFICIENCY" (as defined in Section 302 of ERISA and Section 412 of the Code) or is required to provide security to a Purchasers Plan pursuant to Section 401(a)(29) of the Code. Each Purchasers Plan can be unilaterally terminated by a Purchaser at any time without material liability, have a material adverse effect on any such Planother than for amounts previously reflected in the financial statements (or notes thereto) included in the Parent SEC Reports.
(giii) Except as expressly provided in this AgreementThe Parent SEC Reports or the Purchasers Disclosure Schedule contain a true and complete summary or list of or otherwise describe all employment contracts and other employee benefit arrangements with "CHANGE OF CONTROL" or similar provisions and all severance agreements with directors, any exhibit hereto, a Plan executive officers or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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 officeremployees.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to each All material written "employee benefit plans", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other pension, profit sharing, retirement, supplemental retirement, stock, stock option, change of control, basic and supplemental accidental death and dismemberment, basic and supplemental life and health insurance, post-retirement medical or life, welfare, dental, vision, savings, bonus, deferred compensation, incentive compensation, stock purchase, stock optionbusiness travel and accident, severance or termination pay, hospitalization salary continuation, short-term and long-term disability, termination or other medicalcompensation plan, life arrangement or agreement or other insurance, supplemental unemployment benefits, profit-sharing, pension, material employee fringe benefit plans maintained by the Company or retirement plan, program, agreement any of the Company Subsidiaries or arrangement, and each any other employee benefit plan, program, agreement employer (including but not limited to employment agreements) or arrangement (the an "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate")) that is, that or at any relevant time was, together with the Company is or any of the Company Subsidiaries, treated as a "single employer" within under Section 414(b), 414(c), 414(m) or 414(o) of the meaning Code, or to which the Company or any of Section 4001 of ERISA, the Company Subsidiaries or any ERISA Affiliate contributes or is obligated to contribute thereunder for the benefit of any employee current or former employee employees of Company, any the Company Subsidiary or any of the Company Subsidiaries (the "Employee Benefit Plans") other than any Employee Benefit Plan which is a multiemployer plan, as defined in Section 3(37) of ERISA Affiliate("Multiemployer Plan"), are, in all material respects, maintained in accordance with their terms and with all applicable provisions of the Code and ERISA (including rules and regulations thereunder) and other applicable federal and state laws and regulations, including the timely filing of all material reports, returns and similar documents with the appropriate government agency or distribution to Employee Benefit Plan participants, as applicable, except where the failure to so maintain them would not be reasonably likely to result in a Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true Material Adverse Effect. True and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) such Employee Benefit Plan, and where applicable, a copy of the annual report most recent determination letter received from the Internal Revenue Service (the "IRS"), and actuarial report, if required under ERISAthe most recent IRS Form 5500 filed, with respect to each such Plan for the last two plan years ending prior Employee Benefit Plan, have been furnished to the date hereof;Buyer.
(iiib) a copy Except as indicated in Section 3.12(b) of the most recent Summary Plan DescriptionDisclosure Schedule, together with each Summary of Material Modifications, if required the Employee Benefit Plans (other than the Multiemployer Plans) intended to qualify under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy Section 401 of the trust or other funding agreement (including Code are, and at all amendments thereto) times since their inception have been, so qualified and the latest financial statements trusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the Code, and nothing has occurred with respect to the last reporting period ended immediately prior operation of such plans which would be reasonably likely to result in the date hereof; and
(vloss of such qualification or exemption or the imposition of any material liability, penalty or tax under ERISA or the Code. Except as set forth in Section 3.12(b) of the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to Disclosure Schedule, each such Employee Benefit Plan intended to qualify under section Section 401 of the CodeCode has received a determination letter from the IRS to the effect that each such plan is qualified and all related trusts are exempt from federal income taxes on a determination letter request is pending with the IRS to such effect, and no determination letter with respect to any such plan has been revoked nor, is there any reason for such revocation, nor has any such plan been amended, or failed to be amended, since the date of its most recent determination letter in any respect which would adversely affect its qualification.
(bc) All contributions (including all employer contributions and employee salary reduction contributions) and payments required to have been made under any of the Employee Benefit Plans or by law (without regard to any waivers granted under Section 412 of the Code) or in connection therewith have been made by the due date thereof (including any valid extension, except where the failure to make such contribution would not be reasonably likely to result in a Company Material Adverse Effect). No liability under Title IV asset of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to the Company or any Company Subsidiary or is subject to any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(cSections 401(a)(29) No Plan subject to the minimum funding requirements of section 412 or 412(n) of the Code or section 302 Section 4068 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms arising out of any such Plan or otherwiseaction filed under Section 4301(b) on or prior to the date hereof have been timely madeof ERISA.
(d) Except as set forth in Section 5.17(f3.12(d) of the Disclosure Schedule, neither the Employee Benefit Plans, the Company, the Company Disclosure LetterSubsidiaries, no Plan is any ERISA Affiliate, nor any employee of the foregoing, nor any trusts created thereunder, has engaged in a "multiemployer pension plan,prohibited transaction" as defined in section 3(37) within the meaning of Section 4975 of the Code or Section 406 of ERISA, nor is has any Plan a plan described in Section 4063(a) such person breached any duty imposed by Title I of ERISA, with respect to any Employee Benefit Plan.
(e) Each Neither the Company, the Company Subsidiaries nor any ERISA Affiliate has incurred any material liability to the Pension Benefit Guaranty Corporation (the "PBGC") with respect to any Employee Benefit Plan intended subject to be "qualified" within Title IV of ERISA, other than for the meaning payment of section 401(apremiums, all of which have been paid when due. No Employee Benefit Plan has applied for or received a waiver of the minimum funding standards imposed by Section 412 of the Code. The Company has furnished to Buyer the most recent actuarial report with respect to each Employee Benefit Plan that is a defined benefit pension plan, as defined in Section 3(35) of ERISA. To the Code knowledge of Parent, the information supplied to the actuary by the Company, the Company Subsidiaries and any ERISA Affiliate for use in preparing those reports was complete and accurate. No event has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan occurred since the date of any such letter actuarial report that had, or is likely to result have, a materially adverse effect on the ratio of plan assets to the actuarial present value of plan obligations for accumulated benefits shown in the disqualification of such Planreport.
(f) Each At no time since May 31, 1995 has the Company, the Company Subsidiaries or any ERISA Affiliate incurred any liability which could subject Buyer to any material liability under Section 4062, 4063, 4064 or 4069 of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such PlanERISA.
(g) Except as expressly provided indicated in this AgreementSection 3.12(g) of the Disclosure Schedule, any exhibit heretoat no time since May 31, a Plan or as otherwise agreed in writing by Parent and 1995, have the Company, the consummation Company Subsidiaries or any ERISA Affiliate, been required to contribute to, or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA to any multiemployer pension plan, within the meaning of Section 3(37) of ERISA nor does the Company, the Company Subsidiaries or any ERISA Affiliate to the knowledge of the transactions contemplated by this Agreement will not
(i) entitle Seller have any current potential withdrawal liability arising from a transaction described in Section 4204 of ERISA. All required contributions, withdrawal liability payments or former employee or officer other payments of any type that the Company, the Company Subsidiaries or any ERISA Affiliate have been obligated to make to any multiemployer plan have been duly and timely made. Any withdrawal liability incurred with respect to any multiemployer plan has been fully paid as of the date hereof. Neither the Company, the Company Subsidiary Subsidiaries nor any ERISA Affiliate has undertaken any course of action that could reasonably be expected to severance pay, unemployment compensation lead to a complete or partial withdrawal from 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.
(h) With Except as indicated in Section 3.12(h) of the Disclosure Schedule, no payment which is or may be made by from or with respect to each Plan that is funded wholly any Employee Benefit Plan, to any employee, former employee, director or partially through an insurance policyagent of the Company, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability thatSubsidiaries, individually either alone or in the aggregateconjunction with any other payment, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by will or on behalf of any could properly be characterized as an excess parachute payment under section 280G of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse EffectCode.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to The Parent Letter sets forth a list of each material 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, agreement or arrangement, and each other employee pension benefit plan, program, agreement (including but not limited to employment agreementsas defined in Section 3(2) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary to which Parent or any of its subsidiaries contributes on behalf of its employees, and Parent has delivered to the Company ERISA Affiliatetrue, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true correct and complete copies of each of such plans and trusts, including all amendments thereto, and, with respect to each of such plans, the following documentsmost recent report on Form 5500, actuarial valuation report and summary plan description. None of such plans is (i) a multi-employer plan (as defined in Section 414(f) of the Code or Section 4001(a) of ERISA), or (ii) a plan with respect to which more than one employer makes contributions within the meaning of Sections 4063 and 4064 of ERISA.
(b) With respect to each of such plans:
(i) a copy as of each Plan that is the date of execution of this Agreement, all contributions required for such plan for the plan year most recently ended and for all prior plan years have been made or are reserved for on the balance sheet included in writing (including all amendments thereto)Parent's Annual Report on Form 10-K for the year ended December 31, 1995;
(ii) a copy no reportable event, as such term is defined in Section 4043(b) of the annual report and actuarial report, if required under ERISA, has occurred with respect to each any of such Plan for plans which are subject to Section 4043(b) of ERISA, other than those which will not have a Material Adverse Effect on Parent and its consolidated subsidiaries, taken as a whole, which might arise solely as a result of the last two plan years ending prior transactions contemplated by this Agreement or which pursuant to applicable regulations are not subject to the date hereof30-day notice to the Pension Benefit Guaranty Corporation;
(iii) a copy the total assets of such plans are sufficient to discharge all liabilities of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;plans on a termination basis; and
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy as of the trust or other funding agreement (including all amendments thereto) and Effective Date, no event will have occurred which will result in the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 imposition of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company liability on Parent under Section 4063 or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV 4201 of ERISA.
(c) No Plan subject The Parent Letter sets forth a list and Parent has delivered to the minimum funding requirements Company copies of section 412 all deferred compensation plans, all supplemental death, disability, and retirement plans, all medical reimbursement plans, all employee welfare benefit plans (within the meaning of the Code Section 3(1) of ERISA), all severance plans, all bonus plans and all other employee benefit plans of any kind or section 302 of ERISA character, whether written or oral, maintained by Parent or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) its subsidiaries. Except as set forth in Section 5.17(f) of the Company Disclosure Lettersaid list, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date none of such letter that is likely plans or arrangements provides benefits to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Codeemployees or their dependents after retirement, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Planas required by applicable law.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to each Schedule 4.16(a) sets forth a list that is complete and accurate in ---------------- all material bonusrespects, 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, agreement or arrangement, of ASPECT Employee Benefit Plans and each other employee benefit plan, program, agreement (including but not limited to employment agreementsPacific Employee Benefit Plans. Schedule 4.16(a) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by identifies all ASPECT Employee Benefit Plans and ---------------- Pacific Employee Benefit Plans that are (i) CompanyASPECT Employee Pension Plans or Pacific Employee Benefit Plans (as the case may be), (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan plans intended to qualify under section Section 401 of the Code, and (iii) ASPECT Welfare Plans or Pacific Welfare Plans (as the case may be), which provide for continuing benefits or coverage for any participant or any beneficiary of a participant after such participant's termination of employment except coverage or benefits required by Part 6 of Title I of ERISA or Section 4980B of the Code if paid 100% by the participant or beneficiary.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(fon Schedule 4.16(b): ---------------- (i) true, correct and complete copies of the Company Disclosure Letterfollowing documents, with respect to ASPECT Employee Benefit Plans and Pacific Employee Benefit Plans, have been made available or delivered to Buyer: (A) all plan documents, including trust agreements, insurance policies and service agreements and amendments thereto, (B) the most recent Forms 5500 and any financial statements attached thereto and those for the prior three years, (C) the last Internal Revenue Service determination letter, (D) summary plan descriptions, (E) the most recent actuarial report and those for the prior three years to the extent in Sellers' possession, and (F) written descriptions of all non-written agreements relating to any such plan; (ii) there are no material pending claims or lawsuits which have been asserted or instituted by or against any of ASPECT Employee Benefit Plans or Pacific Employee Benefit Plans, against the assets of any of the trusts under such plans or by or against the plan sponsor, plan administrator, or any fiduciary of the ASPECT Employee Benefit Plans or Pacific Employee Benefit Plans (other than routine benefit claims) and the Sellers have no Knowledge of any facts which could form the basis for any such claim or lawsuit; (iii) with respect to each Benefit Plan is a "multiemployer pension (A) the Companies are in material compliance with the terms of such plan and all applicable laws, rules and regulations governing such plan," as defined in section 3(37, including without limitation ERISA and the Code; (B) of ERISA, nor is any Plan a each such plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such a determination letter that the plan is likely so qualified with respect to all applicable provisions of the Code for which the applicable remedial amendment period has expired and no circumstances exist that could reasonably be expected to result in the disqualification revocation of any such determination; and (C) all required contributions which are due have been made and a proper accrual has been made for all contributions due in the current fiscal year; (iv) with respect to each Employee Pension Plan.
, neither the Sellers nor the Companies have received any written notice that: (fA) Each the Companies or their Subsidiaries have failed to meet the minimum funding standards or to make all contributions required under <PAGE> Section 302 of ERISA and Section 412 of the Plans Code; (B) any accumulated funding deficiency, whether or not waived, exists or any event has been operated and administered occurred or circumstance exists that may result in an accumulated funding deficiency as of the last day of the current plan year for such plan; (C) the Companies or their Subsidiaries have not paid all respects in accordance with applicable lawspremiums due to the Pension Benefit Guaranty Corporation under Section 4007 of ERISA; (D) any event has occurred or circumstance exists that could subject the Companies to any liability arising under or based upon any provision of Title IV of ERISA (whether to a governmental agency, including, but not limited to, a Multiemployer Plan or to any other Person or entity) which could reasonably be expected to have a Material Adverse Effect on the Companies; (E) any transaction or arrangement has occurred that is prohibited under Section 406 of ERISA and or is a "prohibited transaction" under Section 4975 of the Code, except for exempt transactions or arrangements; and (F) any failure notice of intent to so operate terminate has been issued nor has any amendment or administer such Plans Board of Directors resolutions been adopted to treat any ASPECT Employee Pension Plan or Pacific Employee Pension Plan as terminated; (v) neither the Sellers nor the Companies have received any written notice that would not, individually or in they have incurred any liability under Title IV of ERISA as a result of any withdrawal from a Multiemployer Plan; nor will the aggregate, have a material adverse effect on transactions contemplated under this Agreement give rise to any such Plan.
withdrawal liability. Neither the Sellers nor the Companies have received notice from any Multiemployer Plan that the plan is in reorganization or is insolvent, that increased contributions may be required to avoid a reduction in plan benefits or the imposition of any excise tax, or that such plan intends to terminate or has terminated; (gvi) Except none of ASPECT's Employee Benefit Plans or Pacific's Employee Benefit Plans contains any provisions which would prohibit the transactions contemplated by this Agreement or which would give rise to any severance, termination, plant closing or other payments or liabilities as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation result of the transactions contemplated by this Agreement will not
Agreement; (ivii) entitle any current or former employee or officer except with respect to plans maintained pursuant to collective bargaining agreements, each of Company the ASPECT's Employee Benefit Plans and Pacific's Employee Benefit Plans (including without limitation each such Plan covering retirees of the Companies or any Company Subsidiary of their Subsidiaries) may be terminated or amended by its sponsoring employer, in any manner and at any time, without the consent of and without any liability to severance payits participants for benefits that may be accrued and expenses that may be incurred after the date of such termination or amendment, unemployment compensation assuming the amendment or termination is accomplished in accordance with all applicable laws; and (viii) there has been no announcement or legally binding commitment by the Companies or any other payment, or
(ii) accelerate the time of payment their Subsidiaries to create an additional Benefit Plan or vesting, or to amend a Employee Benefit Plan except for amendments required by applicable law which do not materially increase the amount costs of compensation due any such employee or officer.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Employee Benefit Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.. <PAGE>
Appears in 1 contract
Samples: Stock Purchase Agreement
Employee Benefit Plans; ERISA. (a1) With respect to Section 4.13 of the Sensytech Disclosure Schedule lists (A) each material 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, agreement or arrangement, practice and policy under which one, or more than one, current or former officer, employee or director of Sensytech or a Subsidiary of Sensytech has any right to employment, to purchase or receive any stock or other securities of Sensytech or a Subsidiary of Sensytech or to receive any compensation (whether in the form of cash or stock or otherwise) or benefits of any kind or description whatsoever in any material amount or under which Sensytech or a Subsidiary of Sensytech has any material liability and (B) each other employee benefit plan within the meaning set forth in Section 3(3) of ERISA under which the Sensytech or a Subsidiary has any liability. Each such plan, program, agreement arrangement, practice and policy shall be referred to individually as a “Sensytech Plan” and collectively as the “Sensytech Plans”.
(including but not limited b) Sensytech has delivered to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
Argon (i) a current, complete and accurate copy of each Sensytech Plan that which is set forth in writing (including all amendments thereto);
and any related trust, insurance contract or other funding arrangement) and a written summary of each Sensytech Plan which is not set forth in writing and (ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
three (iii3) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
Annual Reports (iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments theretoForm 5500) and the latest financial statements with respect all related exhibits and reports for each Sensytech Plan which is subject to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Sensytech Plan is subject to Title IV of ERISA or Section 412 of the minimum funding requirements Code, and no Sensytech Plan is a multiemployer plan within the meaning of section 412 Section 414(f) of the Code or section 302 a plan described in Section 413(c) of ERISA the Code, and neither Sensytech nor any of its Subsidiaries has ever sponsored or been required to contribute to any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 plan subject to Title IV of ERISA and section ERISA, Section 412 of the Code), whether or not waived, as Section 414(f) of the last day Code or Section 413(c) of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely madeCode.
(d) Except as set forth in There have been no prohibited transactions within the meaning of Section 5.17(f) 406 or Section 407 of ERISA or Section 4975 of the Company Disclosure LetterCode with respect to any of the Sensytech Plans that could result in penalties, taxes, liabilities or indemnification obligations, and there has been no other event, or more than one other event, with respect to any Sensytech Plan is a "multiemployer pension plan," as defined that could result in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of liability for Sensytech or any Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA.
(e) Each Sensytech Plan which is intended to be "qualified" within the meaning of section qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service on the plan as to its qualification andcurrently in effect or has pending an application for such a determination letter from the Internal Revenue Service on the plan as currently in effect, to Company's knowledge, no amendment or has been made to adopted as a prototype plan that received a favorable opinion letter from the Internal Revenue Service, and Sensytech is not aware of any such Plan since the date of such letter that is reason likely to result in the disqualification revocation of any favorable determination letter or opinion letter which has been received or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. Sensytech has provided to Argon a copy of the most recent Internal Revenue Service favorable determination letter or opinion letter with respect to each such PlanSensytech Plan and, if such letter does not cover a Sensytech Plan as currently in effect, a copy of the application to the Internal Revenue Service for such a letter.
(f) Each Except as set forth in Section 4.13 of the Plans Sensytech Disclosure Schedule, each Sensytech Plan has been operated maintained and administered in substantial compliance with its terms and with the requirements prescribed by any and all respects in accordance with applicable lawsstatutes, includingorders, rules and regulations, including but not limited to, to ERISA and the Code, except which are applicable to such Sensytech Plan or to Sensytech or any Subsidiary as a sponsor, a plan administrator or a fiduciary of such Sensytech Plan. If a former Sensytech Plan has been terminated by or all or any part of the liabilities of the Sensytech or any Subsidiary for any current or former Sensytech Plan have been transferred to another employer, such termination or transfer was properly effected, and neither Sensytech nor any of its Subsidiaries has any further liability with respect to such termination or transfer.
(g) Except as set forth in Section 4.13 of the Sensytech Disclosure Schedule, neither the requisite corporate or stockholder approval of, nor the consummation of, the transactions contemplated by this Agreement will (either alone or together with any other event, including, any termination of employment) entitle any current or former officer, employee, director or other independent contractor of Sensytech or a Subsidiary to any change in control payment or benefit, transaction bonus or similar benefit or severance pay or 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 Sensytech Plan.
(h) Except as set forth in Section 4.13 of the Sensytech Disclosure Schedule, neither Sensytech nor any Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor, except as required to avoid excise Tax under Section 4980B of the Code and as required by COBRA.
(i) All contributions and other payments due from Sensytech or any Subsidiary with respect to each Sensytech Plan have been made or paid in full or are shown in the Sensytech Reports, and all of the assets which have been set aside in a trust, escrow account or insurance company separate account to satisfy any obligations under any Sensytech Plan are shown on the books and records of each such trust or account at their current fair market value as of the most recent valuation date for such trust or account, and the fair market value of all such assets as of each such valuation date equals or exceeds the present value of any obligation under any Sensytech Plan.
(j) There are no pending or threatened claims with respect to a Sensytech Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of Sensytech or a Subsidiary, which claims could reasonably be expected to result in any material liability to Sensytech or a Subsidiary, and no audit or investigation by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of Sensytech or a Subsidiary, has been proposed with respect to any Sensytech Plan.
(k) Section 4.13 of the Sensytech Disclosure Schedule sets forth a list of the Persons (other than subcontractors) who were performing services for Sensytech or a Subsidiary of Sensytech on March 31, 2004 who were classified by Sensytech as independent contractors. Each Person who performs, or has performed, services for Sensytech or a Subsidiary as an employee or as an independent contractor is, or has been, properly classified as an employee or as an independent contractor, except where failure to so operate or administer properly classify such Plans that Person(s) would not, individually or in the aggregate, reasonably be expected to have a material adverse effect Material Adverse Effect on Sensytech. Each Person (other than a subcontractor) currently classified as an independent contractor is terminable on not more than thirty (30) days notice, without any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, obligation to pay severance or a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary to severance pay, unemployment compensation or any other payment, or
(ii) accelerate the time of payment or vestingtermination. Each Person who performs, or increase has performed, services for Sensytech or a Subsidiary as an independent contractor has entered into customary covenants regarding confidentiality, non-competition and assignment of inventions and copyrights, except where the amount of compensation due any such employee or officer.
(h) With respect failure to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, so would not have a material adverse effect Material Adverse Effect on the applicable PlanSensytech.
(il) There Vesting for options which are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by outstanding under any employee or beneficiary covered under any such Plan involving any such Plan director stock option or stock purchase plan or arrangement of Sensytech (other than routine claims for benefitsthe “Sensytech Stock Option Plans”), other than any including accelerated vesting which will occur at the Effective Time, has been effected in accordance with the terms of the plans and with all applicable Laws, and the interests in or shares available for issuance under each such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, Sensytech Stock Option Plan are properly registered pursuant to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in Securities Act on a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectForm S-8.
Appears in 1 contract
Samples: Merger Agreement (Sensytech Inc)
Employee Benefit Plans; ERISA. (a) With respect to Section 4.11 of the Disclosure Schedule includes a complete list of (i) each material employee benefit plan, program or policy providing benefits to any current or former employee, independent contractor, officer or director 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 has any liability or contributes or is obligated to contribute, including without limitation any employee welfare benefit plan within the meaning of Section 3(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 any material bonus, incentive, deferred compensation, incentive compensationequity-based, vacation, retirement, 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, agreement or arrangement, and each other employee fringe benefit plan, programprogram or policy (collectively, the “Employee Benefit Plans”) and (ii) each employment, change-in-control, retention severance or similar agreement pursuant to which the Company or any of its Subsidiaries has or would have any obligation to provide compensation and/or benefits (including but not limited each, an “Employment Agreement”).
(b) With respect to employment agreements) each Employee Benefit Plan, the Company has delivered or arrangement (the "Plans")made available to Parent a true, currently maintained or contributed to or required to be contributed to by correct and complete copy of: (i) Company, all plan documents and trust agreements; (ii) any Company Subsidiary or the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (iii) any trade or businessthe current summary plan description, whether or not incorporated if any; (a "Company ERISA Affiliate"), that together with Company is a "single employer" within iv) the meaning of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the most recent annual report and actuarial financial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofany; and
(v) the most recent actuarial report, if any; (vi) the most recent determination letter received prior to the date hereof from the Internal Revenue Service IRS, if any and (vii) any material correspondence. The Company has delivered or made available to Parent a true, correct and complete copy of each Employment Agreement. Except as specifically provided in the foregoing documents, or in other documents, delivered or made available to Parent, there are no amendments to any Employee Benefit Plan or Employment Agreement that have been adopted or approved nor has the Company or any of its Subsidiaries committed (whether or not such commitment is legally binding) to make any such amendments or to adopt or approve any new Employee Benefit Plan or Employment Agreement that would materially increase the liability of the Company and its Subsidiaries taken as a whole.
(c) The Company has, or has applied for, a determination letter with respect to each Employee Benefit Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code and the related trust that covers the Employee Benefit Plan as amended as of the date of this Agreement (or such qualified plan has been established under a prototype or volume submitter plan for which an IRS opinion letter has been obtained by the plan sponsor and is sufficient as to the adopting employer). Each Employee Benefit Plan intended to qualify under section 401 be, or required to be, a qualified plan is so qualified.
(d) No Employee Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code.
, and no Employee Benefit Plan is a “multiemployer plan” (bas defined in Section 3(37) No of ERISA). Neither the Company nor any of its Subsidiaries has incurred any material liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section Section 412 of the Code), whether or not waivednor, as to the knowledge of the last day of the most recent fiscal year of Company, is any such Plan ended prior to the date hereof; and all contributions required material liability reasonably expected to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISAincurred.
(e) Each Plan intended to be "qualified" within the meaning (i) The Company and its Subsidiaries have complied, and are now in compliance, in all material respects with all provisions of section 401(a) of ERISA, the Code has received a favorable determination letter from and all laws and regulations applicable to the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment Employee Benefit Plans and the Employment Agreements and each Employee Benefit Plan and each Employment Agreement has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all material respects in accordance with applicable lawsits terms; (ii) none of the Company and its Subsidiaries nor any other Person, includingincluding any fiduciary, but not limited tohas engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), ERISA and which could subject any of the CodeEmployee Benefit Plans or their related trusts, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this AgreementCompany, any exhibit hereto, a Plan of its Subsidiaries or as otherwise agreed in writing by Parent and Company, any Person that the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary of its Subsidiaries has an obligation to severance payindemnify, unemployment compensation to any Tax or any other payment, or
penalty imposed under Section 4975 of the Code or Section 502 of ERISA; (iiiii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There there are no pending or, to the Company's ’s knowledge, threatened claims by (other than claims for benefits in the ordinary course), lawsuits or on behalf arbitrations which have been asserted or instituted against the Employee Benefit Plans, any fiduciaries thereof with respect to their duties to the Employee Benefit Plans or the assets of any of the Plans, by any employee or beneficiary covered trusts under any such of the Employee Benefit Plans which would reasonably be expected to result in any liability of the Company or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any Employee Benefit Plan involving or any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or participant in the aggregate, have a Company Material Adverse Effectan Employee Benefit Plan.
(jf) Neither Company Except as set forth in Section 4.11(f) of the Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any Company Subsidiary orother event) result in, to cause the Company's knowledgeaccelerated vesting, funding or delivery of, or increase the amount or value of, any Company ERISA Affiliatepayment or benefit to any employee, any officer or director of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, of its Subsidiaries.
(g) All Employee Benefit Plans that are primarily subject to Parent's knowledge, the laws of any Company ERISA Affiliate, any jurisdiction outside of the ERISA PlansUnited States have been maintained in compliance with all applicable laws (including, any such trust if they are intended to qualify for special Tax treatment, applicable Tax laws).
(h) There are no agreements or any trustee Employee Benefit Plan or administrator thereofEmployment Agreement provisions which will or may provide payments of money or other property, acceleration of benefits, or any party dealing with the ERISA Plans provisions of other rights which are or any such trust is likely would be reasonably expected to be “excess parachute payments” under Section 280G of the Code. All plans or arrangements subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 409A of the Code are in substantial compliance with the requirements of such Section, based on a good faith, reasonable interpretation of Section 409A of the Code and the relevant IRS notices, proposed regulations and final regulations.
(i) 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, change-in-control, retention, severance and other than Employee Benefit Plans (collectively, “Arrangements ”) to certain holders of Company Common Shares and other securities of Company (the “Covered Securityholders ”). The Company hereby represents and warrants that all such amounts payable under the Arrangements (A) 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 thereof) and (B) are not calculated based on the number of shares tendered or to be tendered into the Offer by the applicable Covered Securityholder. The Company also hereby represents and warrants that (1) the adoption, approval, amendment or modification of each Arrangement since the discussions relating to the transactions contemplated hereby between the Company and Parent began 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 (2) 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 Company Board, the Compensation Committee thereof or its independent directors. A true and complete copy of any such liability or tax that would not, individually or resolutions reflecting any approvals and actions referred to in the aggregate, have a preceding sentence has been provided to Parent by the Company Material Adverse Effectprior to the execution of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Asv Inc /Mn/)
Employee Benefit Plans; ERISA. (a) With respect Except as disclosed in the Company SEC Reports filed prior to each material bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance the date of this Agreement or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (as set forth in Section 3.11 of the "Plans"), currently maintained or contributed to or required to be contributed to by Company Disclosure Letter:
(i) Companyto the knowledge of the Company and its Subsidiaries, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" no prohibited transaction within the meaning of Section 4001 406 or 407 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), for or Section 4975 of the benefit of any employee or former employee of Company, Code with respect to any Company Subsidiary or any Company ERISA Affiliate, Company Employee Benefit Plan (as defined below) has heretofore delivered or will after occurred during the five-year period preceding the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto)this Agreement;
(ii) a copy there is no outstanding liability (except for premiums due) under Title IV of the annual report and actuarial report, if required under ERISA, ERISA with respect to each such Plan for the last two plan years ending prior to the date hereofany Company Employee Benefit Plan;
(iii) a copy neither the Pension Benefit Guaranty Corporation (the "PBGC"), the Company nor any of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect its Subsidiaries has instituted proceedings to such terminate any Company Employee Benefit Plan;
(iv) if full payment has been made of all amounts which the Plan is funded through a trust Company or any other third party funding vehicle, of its Subsidiaries were required to have paid as a copy contribution to the Company Employee Benefit Plans as of the trust or other funding agreement (including all amendments thereto) and last day of the latest financial statements with respect to most recent fiscal year of each of the last reporting period Company Employee Benefit Plans ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of this Agreement, and none of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder Employee Benefit Plans has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each such Company Employee Benefit Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.this Agreement;
(dv) Except as set forth in Section 5.17(f) the value on a termination basis of accrued benefits under each of the Company Disclosure Letter, no Plan Employee Benefit Plans which is a "multiemployer pension plan," as defined in section 3(37) subject to Title IV of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within based upon the meaning of section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result actuarial assumptions used for funding purposes in the disqualification of most recent actuarial report prepared by such Company Employee Benefit Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance 's actuary with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policysuch Company Employee Benefit Plan, did not, as of its latest valuation date, exceed the Company and the Company Subsidiaries do not have any then current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any value of the Plans, by any employee or beneficiary covered under any assets of such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.Employee Benefit Plan;
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to each All material written "employee benefit plans", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other pension, profit sharing, retirement, supplemental retirement, stock, stock option, change of control, basic and supplemental accidental death and dismemberment, basic and supplemental life and health insurance, post-retirement medical or life, welfare, dental, vision, savings, bonus, deferred compensation, incentive compensation, stock purchase, stock optionbusiness travel and accident, severance or termination pay, hospitalization salary continuation, short-term and long-term disability, termination or other medicalcompensation plan, life arrangement or agreement or other insurance, supplemental unemployment benefits, profit-sharing, pension, material employee fringe benefit plans maintained by the Company or retirement plan, program, agreement any of the Company Subsidiaries or arrangement, and each any other employee benefit plan, program, agreement employer (including but not limited to employment agreements) or arrangement (the an "Plans"), currently maintained or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate")) that is, that or at any relevant time was, together with the Company is or any of the Company Subsidiaries, treated as a "single employer" within under Section 414(b), 414(c), 414(m) or 414(o) of the meaning Code, or to which the Company or any of Section 4001 of ERISA, the Company Subsidiaries or any ERISA Affiliate contributes or is obligated to contribute thereunder for the benefit of any employee current or former employee employees of Company, any the Company Subsidiary or any of the Company Subsidiaries (the "Employee Benefit Plans") other than any Employee Benefit Plan which is a multiemployer plan, as defined in Section 3(37) of ERISA Affiliate("Multiemployer Plan"), are, in all material respects, maintained in accordance with their terms and with all applicable provisions of the Code and ERISA (including rules and regulations thereunder) and other applicable federal and state laws and regulations, including the timely filing of all material reports, returns and similar documents with the appropriate government agency or distribution to Employee Benefit Plan participants, as applicable, except where the failure to so maintain them would not be reasonably likely to result in a Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true Material Adverse Effect. True and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) such Employee Benefit Plan, and where applicable, a copy of the annual report most recent determination letter received from the Internal Revenue Service (the "IRS"), and actuarial report, if required under ERISAthe most recent IRS Form 5500 filed, with respect to each such Plan for the last two plan years ending prior Employee Benefit Plan, have been furnished to the date hereof;Buyer.
(iiib) a copy Except as indicated in Section 3.12(b) of the most recent Summary Plan DescriptionDisclosure Schedule, together with each Summary of Material Modifications, if required the Employee Benefit Plans (other than the Multiemployer Plans) intended to qualify under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy Section 401 of the trust or other funding agreement (including Code are, and at all amendments thereto) times since their inception have been, so qualified and the latest financial statements trusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the Code, and nothing has occurred with respect to the last reporting period ended immediately prior operation of such plans which would be reasonably likely to result in the date hereof; and
(vloss of such qualification or exemption or the imposition of any material liability, penalty or tax under ERISA or the Code. Except as set forth in Section 3.12(b) of the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to Disclosure Schedule, each such Employee Benefit Plan intended to qualify under section Section 401 of the CodeCode has received a determination letter from the IRS to the effect that each such plan is qualified and all related trusts are exempt from federal income taxes on a determination letter request is pending with the IRS to such effect, and no determination letter with respect to any such plan has been revoked nor, is there any reason for such revocation, nor has any such plan been amended, or failed to be amended, since the date of its most recent determination letter in any respect which would adversely affect its qualification.
(bc) All contributions (including all employer contributions and employee salary reduction contributions) and payments required to have been made under any of the Employee Benefit Plans or by law (without regard to any waivers granted under Section 412 of the Code) or in connection therewith have been made by the due date thereof (including any valid extension, except where the failure to make such contribution would not be reasonably likely to result in a Company Material Adverse Effect). No liability under Title IV asset of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to the Company or any Company Subsidiary or is subject to any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(cSections 401(a)(29) No Plan subject to the minimum funding requirements of section 412 or 412(n) of the Code or section 302 Section 4068 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms arising out of any such Plan or otherwiseaction filed under Section 4301(b) on or prior to the date hereof have been timely madeof ERISA.
(d) Except as set forth in Section 5.17(f3.12(d) of the Disclosure Schedule, neither the Employee Benefit Plans, the Company, the Company Disclosure LetterSubsidiaries, no Plan is any ERISA Affiliate, nor any employee of the foregoing, nor any trusts created thereunder, has engaged in a "multiemployer pension plan,prohibited transaction" as defined in section 3(37) within the meaning of Section 4975 of the Code or Section 406 of ERISA, nor is has any Plan a plan described in Section 4063(a) such person breached any duty imposed by Title I of ERISA, with respect to any Employee Benefit Plan.
(e) Each Neither the Company, the Company Subsidiaries nor any ERISA Affiliate has incurred any material liability to the Pension Benefit Guaranty Corporation (the "PBGC") with respect to any Employee Benefit Plan intended subject to be "qualified" within Title IV of ERISA, other than for the meaning payment of section 401(apremiums, all of which have been paid when due. No Employee Benefit Plan has applied for or received a waiver of the minimum funding standards imposed by Section 412 of the Code. The Company has furnished to Buyer the most recent actuarial report with respect to each Employee Benefit Plan that is a defined benefit pension plan, as defined in Section 3(35) of ERISA. To the Code knowledge of Parent, the information supplied to the actuary by the Company, the Company Subsidiaries and any ERISA Affiliate for use in preparing those reports was complete and accurate. No event has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan occurred since the date of any such letter actuarial report that had, or is likely to result have, a materially adverse effect on the ratio of plan assets to the actuarial present value of plan obligations for accumulated benefits shown in the disqualification of such Planreport.
(f) Each At no time since May 31, 1995 has the Company, the Company Subsidiaries or any ERISA Affiliate incurred any liability which could subject Buyer to any material liability under Section 4062, 4063, 4064 or 4069 of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such PlanERISA.
(g) Except as expressly provided indicated in this AgreementSection 3.12(g) of the Disclosure Schedule, any exhibit heretoat no time since May 31, a Plan or as otherwise agreed in writing by Parent and 1995, have the Company, the consummation Company Subsidiaries or any ERISA Affiliate, been required to contribute to, or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA to any multiemployer pension plan, within the meaning of Section 3(37) of ERISA nor does the Company, the Company Subsidiaries or any ERISA Affiliate to the knowledge of the transactions contemplated by this Agreement will not
(i) entitle Seller have any current potential withdrawal liability arising from a transaction described in Section 4204 of ERISA. All required contributions, withdrawal liability payments or former employee or officer other payments of any type that the Company, the Company Subsidiaries or any ERISA Affiliate have been obligated to make to any multiemployer plan have been duly and timely made. Any withdrawal liability incurred with respect to any multiemployer plan has been fully paid as of the Original Date. Neither the Company, the Company Subsidiary Subsidiaries nor any ERISA Affiliate has undertaken any course of action that could reasonably be expected to severance pay, unemployment compensation lead to a complete or partial withdrawal from 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.
(h) With Except as indicated in Section 3.12(h) of the Disclosure Schedule, no payment which is or may be made by from or with respect to each Plan that is funded wholly any Employee Benefit Plan, to any employee, former employee, director or partially through an insurance policyagent of the Company, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability thatSubsidiaries, individually either alone or in the aggregateconjunction with any other payment, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by will or on behalf of any could properly be characterized as an excess parachute payment under section 280G of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse EffectCode.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to each Except as set forth in Section 6.20(a) of the Disclosure Schedule, there are no material bonusemployee benefit plans (including any plans for the benefit of directors or former directors), deferred compensationarrangements, practices, contracts or agreements (including employment agreements, severance agreements, change of control agreements, incentive compensation, stock purchasebonus, stock option, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, stock appreciation rights and each other employee benefit plan, program, agreement stock purchase plans) of any type (including but not limited to employment agreementsplans described in Section 3(3) or arrangement of the Employee Retirement Income Security Act of 1974, as amended (the "PlansERISA")), currently maintained by ASA Acquisition, any of its Subsidiaries or contributed to or required to be contributed to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a an "Company ERISA Affiliate"), that together with Company is ASA Acquisition would be deemed a "single employercontrolled group" within the meaning of Section 4001 4001(a)(14) of ERISA, for or with respect to which ASA Acquisition or any of its Subsidiaries has or may have a liability (the benefit "ASA Acquisition Benefit Plans"). Except as disclosed in Section 6.20(a) of the Disclosure Schedule (or as otherwise permitted by this Agreement): (1) neither ASA Acquisition nor any ERISA Affiliate has any formal plan or commitment, whether legally binding or not, to create any additional ASA Acquisition Benefit Plan or, except as required by law, modify or change any existing ASA Acquisition Benefit Plan that would affect any employee or former terminated employee of CompanyASA Acquisition or any ERISA Affiliate; and (2) since December 31, 1999, there has been no change, amendment, modification to, or adoption of, any Company Subsidiary ASA Acquisition Benefit Plan, in each case, that has had, or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehiclewould have, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the CodeMaterial Adverse Effect on ASA Acquisition.
(b) No liability under Title IV of ERISA has been incurred by CompanyWith respect to each ASA Acquisition Benefit Plan, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (except as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth disclosed in Section 5.17(f6.20(b) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," Schedule or as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect Material Adverse Effect on ASA Acquisition: (i) if intended to qualify under Section 401(a) or 401(k) of the Code, such plan so qualifies, and its trust is exempt from taxation under Section 501(a) of the Code; (ii) such plan has been administered in accordance with its terms and applicable law; (iii) no breaches of fiduciary duty have occurred; (iv) no Prohibited Transaction 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 Plancontributions and premiums) have been made in full.
(gc) None of the ASA Acquisition Benefit Plans has incurred any "accumulated funding deficiency", as such term is defined in Section 412 of the Code, whether or not waived.
(d) Except as expressly provided disclosed in this AgreementSection 6.20(d) of the Disclosure Schedule, neither ASA Acquisition nor any exhibit heretoERISA 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 as, individually or in the aggregate, would not have a Material Adverse Effect on ASA Acquisition or that has not been reflected on ASA Acquisition's consolidated financial statements.
(e) With respect to each ASA Acquisition Benefit Plan that is a "welfare plan" (as defined in Section 3(1) of ERISA), except as specifically disclosed in Section 6.20(e) of the Disclosure Schedule, no such plan provides medical or death benefits with respect to current or former employees of ASA Acquisition or any of its Subsidiaries beyond their termination of employment, other than as otherwise agreed may be required under Part 6 of Title I of ERISA and at the expense of the participant or the participant's beneficiary and except as would not, individually or in writing by Parent the aggregate, have a Material Adverse Effect on ASA Acquisition.
(f) Except with respect to payments under the agreements and Companyprograms specified in Section 6.20(f) of the Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will not
(i) not entitle any current or former employee or officer of Company individual to severance pay or any Company Subsidiary tax "gross-up" payments with respect to severance pay, unemployment compensation the imposition of any tax pursuant to Section 4999 of the Code or any other payment, or
(ii) accelerate the time of payment or vesting, or increase the amount amount, of compensation or benefits due to any individual with respect to any ASA Acquisition Benefit Plan.
(g) Except as disclosed in Section 6.20(a) of the Disclosure Schedule, there is no ASA Acquisition 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) With respect Section 6.20(h) of the Disclosure Schedule identifies each collective bargaining agreement to each Plan that is funded wholly which ASA Acquisition or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of its Subsidiaries is a party and copies of each such agreement have been furnished to or made available to Parent. Except as set forth on Section 6.20(h) of the PlansDisclosure Schedule, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that except as would not, individually or in the aggregate, have a Company Material Adverse EffectEffect on ASA Acquisition, (i) there is no labor strike, slowdown or work stoppage or lockout against ASA Acquisition or any of its 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 ASA Acquisition, no question concerning representation exists with respect to the employees of ASA Acquisition or any of its Subsidiaries.
(ji) Neither Company nor any Company Subsidiary or, Notwithstanding anything to the Company's knowledgecontrary in this Section 6.20, no representation or warranty is made with respect to any Company ERISA Affiliate, benefit plan of AT&T Corp. and ASA Acquisition has no liability in respect of any benefit plan of the ERISA Plans, AT&T Corp. as a result of any trust created thereunder, ASA Acquisition or any trustee or administrator thereof has engaged its Subsidiary employees' prior participation in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effectplans.
Appears in 1 contract
Samples: Merger Agreement (Aon Corp)
Employee Benefit Plans; ERISA. (a) With respect to Schedule 2.20A contains a true and complete list of each material 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Subject Plans"), currently maintained or contributed to or required to be contributed to by (i) Companyany Subject Entity, (ii) any Company Subject Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate")incorporated, that that, together with Company is any Subject Entity or any Subject Subsidiary, would be deemed a "single employer" within the meaning of Section 4001 the Employee Retirement Income Security Act of 1974, as amended ("ERISA") (a "Subject ERISA Affiliate"), for the benefit of any employee or former employee of Company, any Company Subject Entity or any Subject Subsidiary or any Company Subject ERISA Affiliate. Schedule 2.20A identifies each of the Subject Plans that is an "employee benefit plan," as that term is defined in Section 3(3) of ERISA (such plans being hereinafter referred to collectively as the "Subject ERISA Plans").
(b) With respect to each of the Subject Plans, Company has the Selling Parties have heretofore delivered made or will after the date hereof hereafter make available to Parent, upon request, Vistana true and complete copies of each of the following documents:
: (i) a copy of each the Subject Plan that is in writing (including all amendments thereto);
, (ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such the Subject ERISA Plan for the last two plan years ending prior to the date hereof;
years, (iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, ERISA with respect to such the Subject ERISA Plan;
, (iv) if the Subject Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
thereof, and (v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Subject ERISA Plan intended to qualify under section Section 401 of the Code.
(bc) No Except as set forth on Schedule 2.20C, (i) no liability under Title IV of ERISA has been incurred by Company, any Company Subject Entity or any Subject Subsidiary or any Company Subject ERISA Affiliate since the effective date of ERISA that has not been satisfied in full when duefull, and (ii) no condition exists that presents a material risk to Company or any Company Subject Entity, any Subject Subsidiary or any Company Subject ERISA Affiliate of incurring a any liability under such Title which will(other than liability for premiums due to the Pension Benefit Guaranty Corporation (the "PBGC")). To the extent this representation applies to Sections 4064, individually 4069 or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under 4204 of Title IV of ERISA, it is made not only with respect to the Subject ERISA Plans but also with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which any Subject Entity, Subject Subsidiary or a Subject ERISA Affiliate made, or was required to make, contributions during the five-year period ending on the date of this Agreement.
(cd) With respect to each Subject ERISA Plan which is subject to Title IV of ERISA, the present value of accrued benefits under such plan, based upon the actuarial assumptions used for financial reporting purposes in the most recent actuarial report prepared by such plan's actuary with respect to such plan, did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(e) No Subject ERISA Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such each Subject ERISA Plan ended prior to the date hereof; of this Agreement, and all contributions required to be made with respect thereto (whether pursuant to the terms of any such ERISA Plan or otherwise) on or prior to the date hereof of this Agreement have been timely made.
(df) Except as set forth in Section 5.17(fSchedule 2.20F, (i) of the Company Disclosure Letter, no Subject ERISA Plan is a "multiemployer multi-employer pension plan," as defined in section 3(37) of ERISA, nor is any Subject ERISA Plan a plan described in Section 4063(a) of ERISA and (ii) no Subject ERISA Plan is a "defined benefit plan," as defined in Section 3(35) of ERISA.
(eg) Each Except as set forth in Schedule 2.20G, each Subject ERISA Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter from been determined by the Internal Revenue Service as to its be so qualified and the trusts maintained thereunder have been determined to be exempt from taxation under Section 501(a) of the Code and no event has occurred nor does any condition exist which would adversely affect such qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Planand exemption.
(fh) Each of the Subject Plans has been operated and administered in all material respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(gi) No amounts payable under the Subject Plans or under any other contract, arrangement or agreement will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code.
(j) Except as expressly provided set forth in this AgreementSchedule 2.20J, no Subject Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees of any exhibit heretoSubject Entity, and Subject Subsidiary or any Subject ERISA Affiliate beyond such employees' 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, (iii) deferred compensation benefits accrued as liabilities on the books of a Subject Entity, a Plan Subject Subsidiary or as otherwise agreed in writing any Subject ERISA Affiliate or (iv) benefits the full cost of which is borne by Parent and Company, the such employees or their beneficiaries.
(k) The consummation of the transactions contemplated by this Agreement will not
not (i) entitle any current or former employee or officer of Company any Subject Entity, any Subject Subsidiary or any Company Subsidiary Subject ERISA Affiliate to severance pay, unemployment compensation or any other payment, or
(ii) accelerate the time of payment or vesting, or increase the amount amount, of any compensation due any such employee or officer, or (iii) result in any prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available.
(hl) With respect to each Subject Plan that is funded wholly or partially through an insurance policy, there will be no liability of any Subject Entity, any Subject Subsidiary or any Subject ERISA Affiliate, as of the Company and the Company Subsidiaries do not have any current liability Closing, under any such insurance policy in the nature of a retroactive rate adjustment or ancillary agreement with respect to such loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable PlanClosing.
(im) There are no pending or, to the Company's knowledgepending, threatened or anticipated material claims by or on behalf of any of the Subject Plans, by any employee or beneficiary covered under any such Plan Subject Plan, or otherwise involving any such Subject Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(jn) Neither Company nor any Company Subsidiary orNo Subject Entity, to the Company's knowledgeSubject Subsidiary, any Company Subject ERISA Affiliate, any of the Subject ERISA PlansPlan, any trust created thereunder, thereunder or any trustee or administrator thereof has engaged in a transaction in connection with which Company any Subject Entity, any Subject Subsidiary or any Company Subsidiary or, to Parent's knowledge, any Company Subject ERISA Affiliate, any of the Subject ERISA Plans, any such trust trust, or any trustee or administrator thereof, or any party dealing with the Subject ERISA Plans or any such trust is likely to could be subject to either a material civil liability under Section 409 of ERISA or ERISA, Section 502(i) 502 of ERISA, or a material tax imposed pursuant to section Section 4975 or 4976 of the Code.
(o) Each Subject Plan that is a "welfare plan" (as defined in Section 3(1) of ERISA) has been maintained in compliance with Section 4980B of the Code other than any such liability or tax that would notand Parts 6 and 7 of Title I of ERISA and each Subject Entity, individually or in Subject Subsidiary and Subject ERISA Affiliate has complied with the aggregate, have a Company Material Adverse Effectcertification and disclosure requirements of the Health Insurance Portability and Accountability Act.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Section 4.9(a) of the Company Disclosure Schedule contains a true and complete list of each material Benefit Plan. With respect to each material bonusBenefit Plan, deferred compensationthe Company has delivered to Parent a true and complete copy of each of the following, 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by together with all amendments thereto: (i) Companyall plan documents embodying the Benefit Plan (or, where a Benefit Plan has not been reduced to writing, a summary of all material Benefit Plan terms), (ii) in the case of any Company Subsidiary funded Benefit Plan, the trust agreement or similar instrument, (iii) any trade for each Benefit Plan subject to the requirement that annual reports be filed on a Form 5500, the two most recently filed annual reports, with schedules, financial statements and auditor’s opinion attached, (iv) in the case of each Benefit Plan intended to be qualified under Section 401(a) of the Code, the most recent IRS determination or businessopinion letter applicable to the Benefit Plan, whether or not incorporated (a "Company ERISA Affiliate"v) all related custodial agreements, insurance policies (including fiduciary liability insurance covering the fiduciaries of the Benefit Plan), administrative services and similar agreements, and investment advisory or investment management agreements, if any, (vi) the most recent summary plan description, summaries of material modifications or similar summary and any employee handbook referencing the Benefit Plan and (vii) copies of all material correspondence (including any applications or submissions under any voluntary correction programs) with any Governmental Entity relating to any Benefit Plan within the preceding three (3) years.
(b) None of the Company or any of its Subsidiaries or any other person (including an entity) that together with the Company or any of its Subsidiaries is or at any relevant time was treated as a "single employer" employer under Section 414(b), (c), (m) or (o) of the Code (each, together with the Company and any of its Subsidiaries, an “ERISA Affiliate”) has ever contributed or been required to contribute to, or has ever sponsored, maintained or participated in, (i) a pension plan (within the meaning of Section 4001 3(2) of ERISA) subject to Section 412 of the Code or Title IV of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA), or (iii) a single employer pension plan (within the annual report and actuarial reportmeaning of Section 4001(a)(15) of ERISA) for which an ERISA Affiliate could reasonably be expected to incur liability under Section 4063 or 4064 of ERISA. Neither the Company, if required under ERISAnor any of its Subsidiaries, with respect to each such Plan for the last two plan years ending nor any of their ERISA Affiliates has, prior to the date hereof;
, incurred any liability or obligation on account of a “partial withdrawal” or a “complete withdrawal” (iiiwithin the meaning of Sections 4203 and 4205 of ERISA) a copy of the most recent Summary Plan Descriptionfrom, together with each Summary of Material Modifications, if required under ERISA, with or otherwise in respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA has been incurred by Companyof, any Company Subsidiary or any Company ERISA Affiliate multiemployer plan that has not been satisfied in full when due, full. No event has occurred and no condition exists that presents a material risk is likely to Company subject the Company, its Subsidiaries or any Company Subsidiary or of their ERISA Affiliates to any Company ERISA Affiliate of incurring a material liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Each Benefit Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan that is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section qualified under Section 401(a) of the Code has received is covered by a favorable determination or opinion letter from the Internal Revenue Service as to its qualification (the “IRS”). No such determination or opinion letter has been revoked, and, to the Company's knowledge’s Knowledge, revocation has not been threatened. To the Company’s Knowledge, no amendment such Benefit Plan has been made to any such Plan amended or operated since the date of its most recent determination or opinion letter in any respect, and no act or omission has occurred, that would reasonably be expected to adversely affect its qualification.
(d) Each Benefit Plan has been established, maintained and administered in all material respects in accordance with its terms. Each Benefit Plan, including any associated trust or fund, has been established, maintained and administered in all material respects in compliance with the applicable provisions of ERISA, the Code and other applicable Laws (including, where applicable, non-U.S. Laws), and, to the Knowledge of the Company, nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject the Company or any ERISA Affiliate to any material liability or Tax under applicable Law. All material filings and reports with respect to each Benefit Plan required to have been submitted to the IRS, the United States Department of Labor, or any other Governmental Entity have been duly and timely submitted.
(e) No Benefit Plan provides health or life insurance benefits following retirement or other termination of employment, and neither the Company nor any ERISA Affiliate has any obligation to provide any such letter that is likely benefits following retirement or other termination of employment, in each case except for benefit continuation coverage to result in the disqualification extent required under Section 4980B of such Planthe Code, Part 6 of Subtitle B of Title I of ERISA or any similar Law.
(f) Each With respect to each Benefit Plan, there is no pending, or the Knowledge of the Plans has been operated Company, threatened lawsuit, claim, administrative investigation, action, inquiry, audit or other proceeding by the IRS, U.S. Department of Labor or other Governmental Entity, and administered in all respects in accordance with applicable lawsno other lawsuit, includingclaim, but not limited toaction, ERISA and the Codeinquiry, except voluntary compliance request, proceeding or other controversy, other than routine claims for any failure to so operate or administer such Plans that would not, individually or benefits in the aggregateordinary course and proceedings with respect to qualified domestic relations orders, have a material adverse effect on any such Planis pending or, to the Knowledge of the Company, threatened.
(g) With respect to each Benefit Plan, all contributions (including salary reduction contributions), premiums and other payments (i) to the extent due, have been timely made, and (ii) to the extent not yet due, have been appropriately accrued on the books of the Company or, if applicable, its Subsidiaries.
(h) Each Benefit Plan subject to Section 409A of the Code (“Section 409A”) has been documented and operated in all material respects in compliance with Section 409A.
(i) Except for the Benefit Plans listed in Section 4.9(h) of the Company Disclosure Schedule, no Benefit Plan is subject to the Laws of a jurisdiction other than the United States of America, whether or not United States Law also applies. For purposes of the preceding sentence, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Xxxxxxxx Islands and the Virgin Islands shall be considered jurisdictions other than the United States.
(j) Except for the Benefit Plans listed in Section 4.9(j) of the Company Disclosure Schedule, each Benefit Plan and its related documentation or agreement, summary plan description, or other written communication distributed generally to employees by its terms expressly and adequately reserves the right to amend and terminate such Benefit Plan, and each Benefit Plan may be terminated without material liability to the Company or any ERISA Affiliate, except for vested benefits accrued through the date of termination and the administrative and professional costs incurred in such transaction. Except as expressly provided listed in Section 4.9(j) of the Company Disclosure Schedule, no Benefit Plan subject to ERISA includes in its assets any securities issued by the Company or any ERISA Affiliate.
(k) Except as listed in Section 4.9(k) of the Company Disclosure Schedule, neither the execution or delivery of this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, Agreement nor the consummation of the transactions contemplated by this Agreement will not
Transactions, either alone or in combination with another event, including a termination of employment or service, will: (i) entitle any current or former employee or officer of Company Covered Employee or any Company Subsidiary beneficiary or dependent thereof to any severance pay, unemployment compensation or any other payment, or
; (ii) result in or accelerate the time of payment or vestingvesting of, or increase the amount of compensation otherwise increase, any amounts due to any such employee Covered Employee or officer.
(h) With respect to each Plan that is funded wholly any dependent or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability beneficiary thereof under any such insurance policy Benefit Plan, or (iii) result in the nature of a retroactive rate adjustment any payment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, benefit that would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any constitute an “excess parachute payment” under Section 280G of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in Code. Neither the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary orof its Subsidiaries is obligated to “gross up” any Tax incurred by any Person pursuant to Section 409A, to the Company's knowledge, any Company ERISA Affiliate, any 457A or 4999 of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectCode.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) Section 3.11 of the Disclosure Schedule lists each employee pension, retirement, profit sharing, bonus, incentive, deferred compensation, hospitalization, medical, dental, vacation, insurance, sick pay, disability, severance and other plan, trust, fund, program, policy, contract, arrangement or the like that is a Plan maintained, participated in or contributed to by Blue Ridge Printing or any ERISA Affiliate (each, a “Seller Plan”). In addition, Section 3.11 of the Disclosure Schedule lists each obligation, arrangement, plan or customary practice that is an Other Benefit Obligation maintained, participated in or contributed to by Blue Ridge Printing (“Seller Benefit Obligation”). Section 3.11 of the Disclosure Schedule also lists each ERISA Affiliate. The terms “Seller Plan” and “Seller Benefit Obligation” also include any Plan or Other Benefit Obligation formerly maintained, participated in or contributed to by Blue Ridge Printing, a predecessor of Blue Ridge Printing, or any ERISA Affiliate (including with respect to such a predecessor) or former ERISA Affiliate (including with respect to such a predecessor) if Blue Ridge Printing has any liability with respect thereto.
(b) Neither Blue Ridge Printing nor any ERISA Affiliate has ever participated in any “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA). Neither Blue Ridge Printing nor any ERISA Affiliate is subject to any liability with respect to current or prior participation in, current or prior contributions to or current or prior obligations to contribute to any such multiemployer plan. Neither Blue Ridge Printing nor any ERISA Affiliate has any intent or commitment, whether legally binding or not, to establish, maintain or participate in any plan, fund, program, policy, contract, arrangement, obligation, practice or the like that would, if such intent or commitment had already been carried out, be a Seller Plan or a Seller Benefit Obligation, or to modify or change any Seller Plan or Seller Benefit Obligation that would affect any participant in such Plan or Other Benefit Obligation or any employee or terminated employee of Blue Ridge Printing or any ERISA Affiliate.
(c) With respect to each material 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (of the "Plans"), currently maintained or contributed to or required Seller Plans that is intended to be contributed tax-qualified under Section 401 of the Code, a current, effective favorable individual determination letter has been received by such Seller or the ERISA Affiliate with respect to by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within all of the meaning terms of Section 4001 of ERISA, for the benefit of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after Plan relevant to the date hereof make available Plan’s qualification. With respect to Parent, upon request, true and complete copies of each of the following documents:
Seller Plans or Seller Benefit Obligations (i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehiclefund, a copy of the trust or other funding agreement (including all amendments theretomedium thereunder) and for which a ruling, determination letter, or the latest financial statements with respect like is required to obtain the last reporting period ended immediately prior to the date hereof; and
(v) the most recent intended tax benefits thereof, such ruling, determination letter received prior to or the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA like has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied received and is in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISAeffect.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to Section 3.9(a) of the Disclosure Schedule contains a true and complete list of each material 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, pension or retirement plan, program, agreement agreement, fund, policy, practice or arrangement, and each other including all employee benefit planplans within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, program, agreement as amended (including but not limited to employment agreements) or arrangement (the "PlansERISA"), currently sponsored, maintained or contributed to by the Company (or required to be contributed to for which the Company makes payroll deductions) or by (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a an "Company ERISA Affiliate"), that together with the Company is would be deemed a "single employer" within the meaning of Section section 4001 of ERISA, for the benefit of any employee or former employee of Companythe Company and their dependents, any Company Subsidiary or any Company ERISA AffiliateAffiliate (collectively, the "Plans"). Section 3.9(a) of the Disclosure Schedule identifies each of the Plans that is an "employee benefit plan," as defined in section 3(3) of ERISA (collectively, the "ERISA Plans").
(b) With respect to each Plan, the Company has heretofore delivered or will after the date hereof make made available to Parent, upon request, Parent true and complete copies of each of the following documents:
(i) a copy of each the Plan that is in writing (document, including all amendments thereto);
(ii) a copy of the annual report and actuarial reportreport for the most recent three plan years, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if Description (as defined in ERISA) required under ERISA, ERISA with respect to such Planthereto, including all summaries of material modifications;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereofthereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 401(a) of the CodeCode or copies of any pending determination letter requests.
(bc) No liability under Title IV of ERISA or any applicable state laws has been incurred by Company, any the Company Subsidiary or any Company ERISA Affiliate with respect to the Plans that has not been satisfied or otherwise discharged in full when duefull, and no condition exists or is, to the knowledge of the Company, reasonably likely to arise that presents a material risk to the Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which willor any applicable state laws, individually or other than liability for contributions due in the aggregateordinary course and premiums due the Pension Benefit Guaranty Corporation (the "PBGC") (which contributions and premiums have been paid when due). There are no amendments or revisions to any Plan which have been communicated to employees but not reflected in Plan documents or summaries.
(d) No ERISA Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, have nor is any ERISA Plan a Company Material Adverse Effect, or give rise to a lien under Title IV plan described in section 4063(a) of ERISA.
(ce) No Plan subject to To the minimum funding requirements of section 412 knowledge of the Code or section 302 of Company, no ERISA Plan or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such each ERISA Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant Closing Date. There have been no reportable events under section 4043 of ERISA in relation to the terms of any such Plan ERISA Plans. No Lien imposed under the Code or otherwise) on ERISA exists or prior is to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) knowledge of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) likely to be imposed on account of ERISA, nor is any Plan a plan described in Section 4063(a) ERISA Plan. The form of ERISA.
(e) Each each ERISA Plan intended to be "qualified" within the meaning of section 401(a) of the Code has received a favorable been determined as of October 3, 1996 (the date of the most recent determination letter from letters) by the Internal Revenue Service as to its qualification and, to Company's knowledge, no amendment be so qualified (or timely application has been made therefor); to any such Plan the knowledge of the Company, no event has occurred since the date of such letter determination that is likely would adversely affect such qualification for which the cost of correction would have a Material Adverse Effect on the Company; and each trust maintained thereunder has been determined by the Internal Revenue Service to result in the disqualification of such Plan.
(fbe exempt from taxation under section 501(a) Each of the Plans Code. Except as disclosed in Section 3.10(b) of the Disclosure Schedule, each Plan has been operated and administered in all respects in accordance with its terms and applicable lawslaw, including, including but not limited toto ERISA, ERISA the Code and the Codeapplicable state laws, except for any failure to so operate or administer such Plans non-compliance that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect Material Adverse Effect on the applicable PlanCompany.
(if) There are no pending pending, threatened in writing or, to the Company's knowledge, threatened claims by or on behalf of any knowledge of the PlansCompany, by any employee anticipated actions, suits, proceedings or beneficiary covered under any such Plan involving any such Plan claims (other than routine claims for benefits)) by, other than on behalf of, or against, any such claims of the Plans or any trusts related thereto that if determined adversely to the Company would not, individually or in the aggregate, have a Company Material Adverse EffectEffect on the Company.
(jg) Neither Company nor The PBGC has not instituted proceedings to terminate any Company Subsidiary of the ERISA Plans and to the knowledge of the Company, no condition exists that presents a material risk that such proceedings will be instituted.
(h) There are no pending, scheduled or, to the Company's knowledge, any Company ERISA Affiliate, any knowledge of the ERISA PlansCompany, anticipated audits or investigations with respect to the Plans by any trust created thereunder, governmental agency or any trustee or administrator thereof has engaged in authority as a transaction in connection with result of which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to the Company could be subject to either liability which would have a civil liability Material Adverse Effect on the Company.
(i) As of December 31, 1998, the present value of accrued benefits under Section 409 of ERISA or Section 502(i) the Company's defined benefit plan subject to Title IV of ERISA, or a tax imposed pursuant to section 4975 or 4976 as determined using the actuarial assumptions and methods used for SFAS 87 and 132 financial disclosure purposes as of January 31, 1999, did not exceed the market value of the Code other assets of such plan by more than any $4,200,000. As of August 31, 1999, the market value of the assets of such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse Effectplan was approximately $23,652,173.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect Except as set forth in the Parent SEC Reports, at the date hereof, Parent and its subsidiaries do not maintain or contribute to each any material 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, agreement or arrangement, and each other employee benefit planplans, programprograms, agreement arrangements or practices (including but not limited such plans, programs, arrangements or practices of Parent and its subsidiaries being referred to employment agreements) or arrangement (as the "Parent Plans"), currently maintained or contributed to or required to be contributed to by including employee benefit plans within the meaning set forth in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA AffiliateERISA"), that together with Company is a or other similar material arrangements for the provision of benefits (excluding any "single employerMulti-employer Plan" within the meaning of Section 4001 3(37) of ERISA, for ERISA or a "Multiple Employer Plan" within the benefit meaning of any employee or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each of the following documents:
(iSection 413(c) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code). Schedule 4.13 attached hereto lists all Multi-employer Plans and Multiple ------------- Employer Plans which any of Parent or its subsidiaries maintains or to which any of them makes contributions. Neither Parent nor its subsidiaries has any obligation to create any additional such plan or to amend any such plan so as to increase benefits thereunder, except as required under the terms of the Parent Plans, under existing collective bargaining agreements or to comply with applicable law.
(b) No liability 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 could result in penalties, taxes or liabilities which, singly or in the aggregate, could have a Parent Material Adverse Effect, (ii) except for premiums due, there is no outstanding material liability, whether measured alone or in the aggregate, under Title IV of ERISA with respect to any of the Parent Plans, (iii) neither the Pension Benefit Guaranty Corporation nor any plan administrator has been incurred by Company, instituted proceedings to terminate any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk of the Parent Plans subject to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA other than in a "standard termination" described in Section 4041(b) of ERISA.
, (civ) No Plan subject to the minimum funding requirements of section 412 none of the Code or section 302 of ERISA or any trust established thereunder Parent Plans has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the Parent Plans ended prior to the date hereof; and of this Agreement, (v) the current present value of all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) projected benefit obligations under each of the Company Disclosure LetterParent Plans which is subject to Title IV of ERISA did not, no Plan as of its latest valuation date, exceed the then current value of the assets of such plan allocable to such benefit liabilities by more than the amount, if any, disclosed in the Parent SEC Reports as of March 2, 1996, based upon reasonable actuarial assumptions currently utilized for such Parent Plan, (vi) 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, (vii) each of the Parent Plans which is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received been determined by the IRS to be so qualified and such determination has not been modified, revoked or limited by failure to satisfy any condition thereof or by a favorable determination letter from subsequent amendment thereto or a failure to amend, except that it may be necessary to make additional amendments retroactively to maintain the Internal Revenue Service "qualified" status of such Parent Plans, and the period for making any such necessary retroactive amendments has not expired, (viii) with respect to Multi- employer Plans, neither Parent nor any of its subsidiaries has made or suffered a "complete withdrawal" or a "partial withdrawal," as to its qualification such terms are respectively defined in Sections 4203, 4204 and 4205 of ERISA and, to Company's knowledgethe best knowledge of Parent and its subsidiaries, no amendment event has been made occurred or is expected to occur which presents a material risk of a complete withdrawal or partial withdrawal under said Sections 4203, 4204 and 4205, (ix) to the best knowledge of Parent and its subsidiaries, there are no material pending, threatened or anticipated claims involving any such Plan since of the date of such letter that is likely to result Parent Plans other than claims for benefits in the disqualification of such Plan.
ordinary course, and (fx) Each of the Plans has been operated Parent and administered in all respects in accordance with applicable lawsits subsidiaries have no current material liability, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually whether measured alone or in the aggregate, have a material adverse effect for plan termination or complete withdrawal or partial withdrawal under Title IV of ERISA based on any such Plan.
(g) Except as expressly provided in this Agreement, plan to which any exhibit hereto, a Plan or as otherwise agreed in writing by entity that would be deemed one employer with Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability its subsidiaries under Section 409 4001 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 414 of the Code other than contributed during the period of time covered by the applicable statute of limitations (a "Parent Controlled Group Plan"), and Parent and its subsidiaries do not reasonably anticipate that any such liability will be asserted against Parent or tax that would not, individually any of its subsidiaries. None of the Parent Controlled Group Plans has an "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code).
(c) The Parent SEC Reports contain a true and complete summary or in the aggregate, have a Company Material Adverse Effectlist of or otherwise describe all material employment contracts and other employee benefit arrangements with "change of control" or similar provisions and all severance agreements with executive officers.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect Neither Parent nor any of the Parent Subsidiaries is a party to each material bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance any oral or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (the "Plans"), currently maintained or contributed to or required to be contributed to by written (i) Companyemployment severance, collective bargaining or consulting agreement not terminable on 60 days' or less notice, (ii) agreement with any Company current or former executive officer or other current or former key employee of Parent or any Parent Subsidiary (A) the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Parent or any Parent Subsidiary of the nature of any of the transactions contemplated by this Agreement, (B) providing any term of employment or compensation guarantee extending for a period longer than six months, or (C) providing severance benefits or other benefits after the termination of employment of such executive officer or key employee regardless of the reason for such termination of employment, (iii) agreement, plan or arrangement under which any trade person may receive payments subject to the tax imposed by Section 4999 of the Code, or business(iv) agreement or plan, whether including, without limitation, any stock option plan, stock appreciation right plan, restricted stock plan or not incorporated (a "Company ERISA Affiliate")stock purchase plan, that together with Company is a "single employer" within the meaning benefits of Section 4001 which would be increased, or the vesting of ERISAbenefits of which would be accelerated, for by the benefit occurrence of any employee of the transactions contemplated by this Agreement or former employee the value of Company, any Company Subsidiary or of the benefits of which will be calculated on the basis of any Company ERISA Affiliate, Company has heretofore delivered or will after of the date hereof make available to Parent, upon request, transactions contemplated by this Agreement. The Parent Disclosure Schedule contains a true and complete copies correct description of the annual compensation, bonus plans and awards, options, SAR's, deferred compensation and all other material benefits for each of the following documents:
(i) a copy executive officers of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the CodeParent.
(b) No Neither Parent nor any corporation or other entity which under Section 4001(b) of ERISA is under common control with Parent (a "Parent ERISA Affiliate") maintains any Pension Plan or any Welfare Plan that is subject to ERISA. Each Pension Plan and Welfare Plan of Parent and the Parent ERISA Affiliates has been maintained in all material respects in compliance with its terms and all provisions of ERISA and the Code (including rules and regulations thereunder) and other applicable laws. Neither Parent nor any Parent ERISA Affiliate is subject to potential liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV Section 4069(a) of ERISA.
(c) No Pension Plan or Welfare Plan of Parent or any Parent ERISA Affiliate is currently subject to an audit or other investigation by the minimum funding requirements IRS, the Department of section 412 of Labor, the Code or section 302 of ERISA Pension Benefit Guaranty Corporation or any trust established thereunder has incurred other Governmental Entity nor are any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether such plans subject to any lawsuits or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms legal proceedings of any kind or to any material pending disputed claims by employees or beneficiaries covered under any such Plan plan or otherwise) on or prior to the date hereof have been timely made.
by any other parties. (d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a No "multiemployer pension planprohibited transaction," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 406 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than Code, resulting in material liability to Parent or any such Parent ERISA Affiliate has occurred with respect to any Pension Plan or Welfare Plan. Parent has no knowledge of any breach of fiduciary responsibility under Part 4 of Title I of ERISA which has resulted in or would result in any material liability to Parent, any trustee, administrator or tax that would not, individually fiduciary of any Pension Plan or in the aggregate, have a Company Material Adverse EffectWelfare Plan of Parent or any Parent ERISA Affiliate.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to each material bonusSchedule 4.9(a) contains a complete and accurate list of all Employee Benefit Plans. For purposes of this agreement, "Employee Benefit Plan" means any "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA), and any other written or oral plan, agreement or arrangement involving direct or indirect compensation (other than payroll) or any other employee benefit of any kind, including without limitation insurance coverage, severance benefits, disability benefits, deferred compensation, incentive compensationbonuses, stock options, stock purchase, phantom stock, stock option, severance or termination pay, hospitalization appreciation or other medicalforms of incentive compensation or post-retirement compensation, life whether formal or other insuranceinformal, supplemental unemployment benefits, profit-sharing, pension, funded or retirement plan, program, agreement or arrangementunfunded, and each other employee benefit planwhether or not legally binding, programwhich the Seller on or before the Closing, agreement (including but not limited to employment agreements) or arrangement (the "Plans")has sponsored, currently maintained or contributed to or been required to be contributed contribute to by (i) Company, (ii) or has had any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" within the meaning of Section 4001 of ERISAobligation, for the benefit of any employee present or former employee Shareholders, employees, retirees, directors or independent contractors (or their beneficiaries, dependents or spouses) of Companythe Seller, and for which a liability of the Seller of any Company Subsidiary nature, contingent or any Company ERISA Affiliateotherwise currently exists, Company has heretofore delivered or will after the date hereof make available to Parentfor which there is a reasonable expectation of such obligation or liability. Except as disclosed on Schedule 4.9(a), upon request, true complete and complete accurate copies of each of the following documents:
(i) a copy of documents for each Employee Benefit Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Plan for the last two plan years ending prior have been delivered to the date hereof;
Buyer by Seller: (iiiA) a copy any Employee Benefit Plans which have been reduced to writing and any related amendments, (B) written summaries of the most recent Summary Plan Descriptionany unwritten Employee Benefit Plan, together with each Summary of Material Modifications(C) any related trust agreement, if required under ERISA, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust insurance contract annuity contract or other funding agreement (including all amendments thereto) and the latest financial statements with respect any summary plan description required under ERISA, including any modification communicated to or required to be communicated to any participant, (D) any annual report filed or required to be filed on Internal Revenue Service ("IRS") Forms 5500, 5500-C or 5500-R and all related schedules for the last reporting period ended three years immediately prior to before the date hereof; and
year of the Closing, (vE) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended any Employee Benefit Plan, if any, and the full and complete application thereof submitted to qualify the IRS, any actuarial report and any financial statements prepared or issued with respect to any Employee Benefit Plan, (F) any collective bargaining agreement pursuant to which contributions have been made or obligations incurred (including both pension and welfare benefits) by the Seller, and any collective bargaining agreement pursuant to which contributions are being made or obligations are owed by the Seller, (G) any contract in effect relating to any Employee Benefit Plan, including contracts or agreements with any third party administrator, actuary, investment manager, consultant, or other independent contractor and any insurance agreements, including stop-loss agreements, (H) any notification and election forms used to notify any former or active employee of the Seller (or their beneficiaries, dependents or spouses) of his or her continuation coverage rights under section 401 any group health plan, including without limitation his or her rights under ERISA ss.601 et seq. and Section 4980B of the Code.
(b) No liability under Title IV of ERISA has been incurred by Company, any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company or (I) any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA.
(c) No Plan subject to the minimum funding requirements of section 412 of the Code or section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no Plan is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan 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 as to its qualification and, to Company's knowledge, no amendment has been made communication to any such participant relating to any Employee Benefit Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable Plan.
(i) There are no pending or, to the Company's knowledge, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company nor any Company Subsidiary or, to the Company's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with any amendment, termination, establishment, increase or decrease in benefits, acceleration or deceleration of payments, vesting schedules or other events which Company or would result in any Company Subsidiary or, liability to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 of the Code other than any such liability or tax that would not, individually or in the aggregate, have a Company Material Adverse EffectSeller.
Appears in 1 contract
Employee Benefit Plans; ERISA. (a) With respect to The Parent Disclosure Schedule contains a true and complete list of each material bonus, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, vacation, severance or termination pay, disability hospitalization or other medical, cafeteria, health or dependent care flexible spending account, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreementsagreements and whether or not covered under Section 3(3) of ERISA) or arrangement (the collectively, "Parent Plans"), ) currently maintained in whole or in part or contributed to to, or required to be contributed to to, by (i) CompanyParent, or (ii) any Company Subsidiary Parent Subsidiary, or (iii) any trade or business, whether or not incorporated (a "Company Parent ERISA Affiliate"), that together with Company is Parent would be deemed a "single employer" within the meaning of Section section 4001 of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder ("ERISA, ") for the benefit of any employee or former employee of CompanyParent, any Company Parent Subsidiary or any Company Parent ERISA Affiliate. With respect to each of the Parent Plans, Parent has delivered to Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true complete and complete genuine copies of each of the following documents:
(i) a copy of each Parent Plan that is in writing (including all amendments thereto)) and participating employer agreements;
(ii) a copy of the annual report and actuarial report, if required under ERISA, with respect to each such Parent Plan for the last two plan years ending prior to the date hereof;
(iii) a copy of the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA, with respect to such Parent Plan;
(iv) if the Parent Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements and any actuarial reports required by ERISA with respect to the last reporting period ended immediately prior to the date hereofthereof;
(v) all pending applications, including all attachments, submitted to the Internal Revenue Service for Internal Revenue Service determination letters or rulings with respect to Parent Plans, the latest determination letters or rulings issued by the Internal Revenue Service regarding the Parent Plans and all other material correspondence for the last six years ending on the Closing Date with the Internal Revenue Service or U.S. Department of Labor relating to plan qualification, filing of required forms or pending, contemplated or announced plan audits with respect to the Parent Plans; and
(vvi) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 written employment agreement, change in control agreement, severance agreement or similar agreement and all handbooks, memoranda or other statements of the Codeemployment policies.
(b) No liability under Title IV of ERISA has been incurred by CompanyParent, any Company Parent Subsidiary or any Company Parent ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk to Company Parent or any Company Parent Subsidiary or any Company Parent ERISA Affiliate of incurring a liability under such Title which willTitle. To the extent this representation applies to Sections 4064, individually 4069 or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under 4204 of Title IV of ERISA, it is made not only with respect to the Parent ERISA Plans but also with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which Parent, any Parent Subsidiary or any Parent ERISA Affiliate made, or was required to make, contributions during the five-year period ending on the Effective Time.
(c) No Parent Plan subject to the minimum funding requirements of section Section 412 of the Code or section Section 302 of ERISA or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, any "unfunded benefit liability" (as defined in Section 4001(a)(18) of ERISA) or any "liquidity shortfall" (as defined in Section 412(m)(5) of the Code), as of the last day of the most recent fiscal year of such Parent Plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any such Parent Plan or otherwise) on or prior to the date hereof have been timely made; and no event described in Section 401(a)(29) of the Code has occurred or can reasonably be expected to occur with respect to Parent or any Parent ERISA Affiliate and no "reportable event" (as that term is defined in Section 4043 of ERISA and for which the 30-day notice requirement has not been waived) has occurred with respect to any Parent Plan within the last six years prior to the Closing Date.
(d) Except as set forth in Section 5.17(f) of the Company Disclosure Letter, no No Parent Plan is a "multiemployer multi-employer pension plan," as defined in section Section 3(37) of ERISA, ERISA or a foreign plan as defined in Section 4(b)(4) of ERISA nor is any Parent Plan a plan described in Section 4063(a) of ERISAERISA or is maintained as, or in connection with, an organization that is intended to meet the requirements for exemption from federal income taxes under Section 501(c)(9) of the Code.
(e) Each Parent Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and, to Company's knowledge, and no amendment has been made to any such Parent Plan since the date of such the letter that is likely to result in the disqualification of such Parent Plan, and the Parent Disclosure Schedule identifies which of the Parent Plans is an "employee benefit plan", as that term is defined in Section 3(3) of ERISA (such plans being hereinafter referred to collectively as the "Parent ERISA Plans").
(f) Each of the Parent Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for Code and no issue is pending and no issue has been adversely resolved with respect to any failure to so operate or administer such of the Parent Plans that would notmay subject Parent, individually and Parent Subsidiary or in the aggregateParent ERISA Affiliate to any penalty, have a material adverse effect on interest, tax or other obligation, nor is there any basis for imposition of any such Planliability.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the The consummation of the transactions contemplated by this Agreement will not
not (iA) entitle any current or former employee or officer of Company Parent or any Company Parent Subsidiary to severance pay, unemployment compensation or any other payment, or
or (iiB) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer, or (C) result in any prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available.
(h) With respect to each Parent Plan that is funded wholly or partially through an insurance policy, the Company Parent and the Company Parent Subsidiaries do not have any current liability under any such insurance policy in the nature of a retroactive rate adjustment or adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring prior to the closing other than any such liability that, individually or in the aggregate, would not have a material adverse effect on the applicable PlanClosing.
(i) There are no pending or, to the CompanyParent's knowledge, threatened claims by or on behalf of any of the Parent Plans, by any employee or beneficiary covered under any such Parent Plan involving any such Parent Plan (other than routine claims for benefits), other than any such claims that would not, individually or in the aggregate, have a Company Material Adverse Effect.
(j) Neither Company Parent nor any Company Parent Subsidiary or, to the CompanyParent's knowledge, any Company Parent ERISA Affiliate, any of the Parent ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection with which Company or Parent, any Company Parent Subsidiary or, to Parent's knowledge, any Company Parent ERISA Affiliate, any of the ERISA Parent Plans, any such trust trust, or any trustee or administrator thereof, or any party dealing with the ERISA Parent Plans or any such trust is likely to or will be subject to either a civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section Section 4975 or 4976 of the Code Code.
(k) Except as may be required to maintain the favorable tax qualification of any Parent Plan described in Section 4.15(e) of this Agreement, Parent has no formal plan or commitment, whether legally binding or not, to create any additional Parent Plan or modify or change any existing Parent Plan that would affect any employee or terminated employee of Parent or any Parent Subsidiary.
(l) The Pension Benefit Guaranty Corporation has not instituted proceedings under Section 4042 of ERISA to terminate any Parent ERISA Plan and no condition exists that presents a material risk that such proceedings will be instituted.
(m) Except as disclosed in Schedule 4.15(m), no amounts payable under any Parent Plan or under any other agreement or arrangement will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code.
(n) No "leased employees", as that term is defined in Section 414(n) of the Code, perform services for Parent or any Parent Subsidiary.
(o) No Parent Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees of Parent or any Parent Subsidiary beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable law, (ii) death benefits or retirement benefits under any such "employee pension benefit plan," as defined in Section 3(2) of ERISA, (iii) deferred compensation benefits accrued as liabilities on the books of Parent or (iv) benefits the costs of which are borne by the current or former employee or his beneficiary.
(p) With respect to each of the Plans, the provisions of Section 4980B(f) of the Code have been complied with in all respects.
(q) Each Parent Plan may be amended or terminated without liability or tax that would not, individually or (other than for benefits due in the aggregate, have a Company Material Adverse Effectordinary course) to Parent or any Parent ERISA Affiliate (or any successor thereto) on or at any time after the consummation of the transactions contemplated by this Agreement without contravening the terms of such plan or any law or agreement that pertains to Parent or any Parent ERISA Affiliate.
Appears in 1 contract
Samples: Merger Agreement (Symbion Inc/Tn)
Employee Benefit Plans; ERISA. (a) With respect to each material 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, agreement or arrangement, and each other employee benefit plan, program, agreement (including but not limited to employment agreements) or arrangement (To the "Plans"), currently maintained or contributed to or required to be contributed to by knowledge of Parent there (i) Company, (ii) any Company Subsidiary or (iii) any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that together with Company is a "single employer" have been no prohibited transactions within the meaning of Section 4001 406 and 407 of ERISA, for the benefit of any employee ERISA or former employee of Company, any Company Subsidiary or any Company ERISA Affiliate, Company has heretofore delivered or will after the date hereof make available to Parent, upon request, true and complete copies of each Section 4975 of the following documents:
(i) a copy of each Plan that is in writing (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under ERISACode, with respect to each such Plan for the last two plan years ending prior to the date hereof;
(iii) a copy any of the most recent Summary Plan DescriptionParent Benefit Plans (as hereinafter defined) that could result in penalties, together with each Summary taxes or liabilities which, singly or in the aggregate, could have a Material Adverse Effect on Parent, (ii) except for premiums due, there is no outstanding liability in excess of Material Modifications$10,000, if required under ERISAwhether measured alone or in the aggregate, with respect to such Plan;
(iv) if the Plan is funded through a trust or any other third party funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements with respect to the last reporting period ended immediately prior to the date hereof; and
(v) the most recent determination letter received prior to the date hereof from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Code.
(b) No liability under Title IV of ERISA with respect to any of the Parent Benefit Plans, (iii) neither the Pension Benefit Guaranty Corporation nor any plan administrator has been incurred by Company, instituted proceedings to terminate any Company Subsidiary or any Company ERISA Affiliate that has not been satisfied in full when due, and no condition exists that presents a material risk of the Parent Benefit Plans subject to Company or any Company Subsidiary or any Company ERISA Affiliate of incurring a liability under such Title which will, individually or in the aggregate, have a Company Material Adverse Effect, or give rise to a lien under Title IV of ERISA other than in a "standard termination" described in Section 4041(b) of ERISA.
, (civ) No Plan subject to the minimum funding requirements of section 412 none of the Code or section 302 of ERISA or any trust established thereunder Parent Benefit Plans has incurred any "accumulated funding deficiency" (as defined in section Section 302 of ERISA and section Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan each of the Parent Benefit Plans ended prior to the date hereof; and of this Agreement, (v) the current present value of all contributions required projected benefit obligations under each of the Parent Benefit Plans which is subject to be made with respect thereto Title IV of ERISA did not, as of its latest valuation date, exceed the then current value of the assets of such plan allocable to such benefit liabilities by more than the amount, if any, disclosed in the Parent Financial Statements as of June 30, 1996 (whether pursuant based upon reasonable actuarial assumptions currently utilized for such Parent Benefit Plan), (vi) to the terms knowledge of any such Plan or otherwise) on or prior to the date hereof have been timely made.
(d) Except as set forth in Section 5.17(f) Parent, each of the Company Disclosure LetterParent Benefit 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, no Plan (vii) each of the Parent Benefit Plans which is a "multiemployer pension plan," as defined in section 3(37) of ERISA, nor is any Plan a plan described in Section 4063(a) of ERISA.
(e) Each Plan intended to be "qualified" within the meaning of section Section 401(a) of the Code has received a favorable determination letter from been determined by the Internal Revenue Service as IRS to its qualification be so qualified and, to Company's knowledgethe knowledge of Parent, such determination has not been 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 Benefit Plans, and the period for making any such necessary retroactive amendments has not expired, (viii) with respect to Multiemployer Plans, neither Parent nor any Parent Subsidiary has made or suffered a "complete withdrawal" or a "partial withdrawal," as such terms are respectively defined in Sections 4203, 4204 and 4205 of ERISA and, to the knowledge of Parent, no amendment event has been made occurred or is expected to any such Plan since the date of such letter that is likely to result in the disqualification of such Plan.
(f) Each of the Plans has been operated and administered in all respects in accordance with applicable laws, including, but not limited to, ERISA and the Code, except for any failure to so operate or administer such Plans that would not, individually or in the aggregate, have occur which presents a material adverse effect on any such Plan.
(g) Except as expressly provided in this Agreement, any exhibit hereto, a Plan or as otherwise agreed in writing by Parent and Company, the consummation of the transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of Company or any Company Subsidiary 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.
(h) With respect to each Plan that is funded wholly or partially through an insurance policy, the Company and the Company Subsidiaries do not have any current liability under any such insurance policy in the nature risk of a retroactive rate adjustment complete or loss sharing arrangement arising wholly or partially out of events occurring prior to the closing other than any such liability thatpartial withdrawal under said Sections 4203, individually or in the aggregate4204 and 4205, would not have a material adverse effect on the applicable Plan.
(iix) There there are no pending or, to the Company's knowledgeknowledge of Parent, threatened or anticipated claims by or on behalf of involving any of the Plans, by any employee or beneficiary covered under any such Plan involving any such Plan (Parent Benefit Plans other than routine claims for benefits)benefits in the ordinary course, other than and (x) neither Parent nor any such claims that would notParent Subsidiary has a current liability in excess of $10,000, individually whether measured alone or in the aggregate, have a Company Material Adverse Effect.
for plan termination or withdrawal (jcomplete or partial) Neither Company nor under Title IV of ERISA based on any Company Subsidiary or, plan to the Company's knowledge, which any Company ERISA Affiliate, any of the ERISA Plans, any trust created thereunder, or any trustee or administrator thereof has engaged in a transaction in connection entity that would be deemed one employer with which Company or any Company Subsidiary or, to Parent's knowledge, any Company ERISA Affiliate, any of the ERISA Plans, any such trust or any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust is likely to be subject to either a civil liability Parent under Section 409 4001 of ERISA or Section 502(i) of ERISA, or a tax imposed pursuant to section 4975 or 4976 414 of the Code other than contributed during the period of time covered by the applicable statute of limitations (the "Parent Controlled Group Plans"), and Parent does not anticipate that any such liability will be asserted against Parent or tax that would notany Parent Subsidiary. None of the Parent Controlled Group Plans has an "accumulated funding deficiency" (as defined in Section 302 of ERISA and 412 of the Code), individually and no Parent Controlled Group Plan has an outstanding funding waiver which could result in the imposition of liens, excise taxes or liability against Parent in excess of $10,000 whether measured alone or in the aggregate. Parent Benefit Plans means and includes any employee benefit plans, have a Company Material Adverse Effectprograms, arrangements and practices of Parent and the Parent Subsidiaries, including employee benefit plans within the meaning set forth in Section 3(3) of the ERISA.
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