Employee Benefit Plans; Labor and Employment Matters. (a) Set forth in Schedule 2.13 is a true, correct and complete list of each of the following employee benefit plans maintained, sponsored or contributed to by the Companies or CSC or any ERISA Affiliate at any time since January 1, 1997, or with respect to which the Companies or CSC or any ERISA Affiliate could reasonably have any liabilities, or which provides or will provide benefits to present or former employees, officers, directors or independent contractors of the Companies or CSC or any ERISA Affiliate, or their dependents, survivors or beneficiaries (the "Company Plans"): (i) each "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA) ("Pension Plan"), (ii) each "employee welfare benefit plan" (as such term is defined in Section 3(1) of ERISA), and (iii) each employee benefit plan, program or arrangement that is not subject to ERISA, including without limitation any retirement, pension, savings, profit sharing, money purchase pension, defined benefit, deferred compensation, severance, retention, golden parachute, stock ownership, stock purchase, stock option, phantom stock, equity, performance, bonus, incentive, vacation or holiday pay, educational assistance or tuition remission or reimbursement, cafeteria, dependent care, transportation, hospitalization or other medical, disability, death benefit plan (whether provided through insurance, on a funded or unfunded basis, or otherwise), or other welfare, benefit or fringe benefit plan, policy, trust, understanding or arrangement of any kind, whether written or oral. Neither of the Companies, nor CSC, nor any ERISA Affiliate currently sponsors, maintains or is required to contribute to or make any payments in respect of, or has at any time sponsored, maintained or been required to contribute to or make any payments in respect of, (i) any Pension Plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code or (ii) any "multiemployer plan" (as such term is defined in Section 3(37) of ERISA) ("Multiemployer Plan"). With respect to each Company Plan, the Companies or CSC have provided to Buyer a true, correct and complete copy of each of the following that is applicable to such Company Plan: the current plan document with all amendments thereto; any related trust or custodial agreements, insurance or annuity contracts currently in effect; the current summary plan description and any subsequent summary of material modifications; the Companies and CSC's current employee handbook; the most recent favorable IRS determination or opinion letter received; Form 5500s for the plan year ended December 31, 2001; notices of all reportable events filed (or descriptions of reportable events which have occurred, but have not been reported); any application for and grant or denial of funding waiver under Code Section 412; any Form 5330s filed with the Internal Revenue Service; SEC registration statements and SEC required disclosure to participants and Form 11-Ks; and a schedule of contributions for the past three years to any Multiemployer Plan. (b) With respect to the Company Plans, except as set forth in Schedule 2.13 and except as would not individually or in the aggregate have a Company Material Adverse Effect: (i) each Company Plan intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code") has received a favorable determination letter from the Internal Revenue Service (the "IRS") that it is so qualified and since the date of such letter there are no circumstances that are reasonably likely to affect the qualified status of such Company Plan, (ii) each Company Plan has been operated in all material respects in accordance with its terms and the requirements of any applicable laws, regulations or administrative rulings, (iii) none of the Companies, CSC or any ERISA Affiliate has incurred or has any reason to believe that it will incur any direct or indirect liability under, arising out of or by operation of Title IV of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and no fact or event exists that is reasonably likely to give rise to any such liability, (iv) there is no pending or, to the knowledge of the Companies or CSC, threatened claim, suit or grievance in respect of any of the Company Plans or, to the knowledge of the Companies or CSC, any basis for any such claim, suit or grievance, other than claims for benefits in the ordinary course of business, and (v) all required contributions, reserves or premium payments for the Company Plans have been made. (c) None of the Companies, CSC or, to the knowledge of CSC or the Companies, any other "disqualified person" (within the meaning of Section 4975 of the Code) or "party in interest" (within the meaning of Section 3(14) of ERISA) has taken any action with respect to any Company Plan that could subject any such plan (or its related trust), the Companies, CSC or any officer, director or employee of any of the foregoing to a material penalty or tax under Section 502(i) or Section 502(l) of ERISA or Section 4975 of the Code, provided that as to Multiemployer Plans, the representation and warranty in this Section 2.13(c) is made only to the knowledge of CSC or the Companies. (d) Except as set forth in Schedule 2.13, none of the Companies or CSC maintains or contributes to any employee welfare benefit plan which provides benefits to employees after termination of employment other than as required by Part 6 of Title I of ERISA. Any employee welfare benefit plan set forth in Schedule 2.13 as described in the previous sentence can be amended or terminated at any time in the future. (e) Except as set forth in Schedule 2.13 and except as would not individually or in the aggregate be reasonably likely to have a Company Material Adverse Effect, (i) the Companies and CSC have complied in all material respects with all applicable laws, rules and regulations which relate to wages, hours, discrimination in employment and collective bargaining and are not liable for any arrears of wages or any taxes or penalties for failure to comply with any of the foregoing and (ii) there is no pending or, to the knowledge of CSC or the Companies, threatened claim, suit, arbitration, grievance or investigation regarding employment matters against the Companies or CSC. Except as set forth in Schedule 2.13, (x) there is no unsatisfied award, judgment or other final resolution of a dispute regarding employment matters against the Companies or CSC that requires continuing compliance therewith or that individually or in the aggregate constitutes a material liability and (y) none of the Companies or CSC is a party to any collective bargaining or other labor union contracts. There is no pending or, to the knowledge of CSC or the Companies, threatened labor dispute, strike or work stoppage against the Companies or CSC which would interfere with the respective business activities of the Companies or CSC, except where such dispute, strike or work stoppage would not have a Company Material Adverse Effect and, to the knowledge of CSC or the Companies, there are no pending or threatened union organizing or election activities involving any non-union employees of the Companies or CSC. (f) As used herein, "ERISA Affiliate" shall mean (i) any corporation which at any time on or before the Closing Date is or was a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) with the Companies or CSC, (ii) any partnership, trade or business (whether or not incorporated) which at any time on or before the Closing Date is or was under common control (within the meaning of Section 414(c) of the Code) with the Companies or CSC, (iii) any entity which at any time on or before the Closing Date is or was a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) with the Companies, CSC or any corporation described in clause (i) of this paragraph or any partnership, trade or business described in clause (ii) of this paragraph, and (iv) any entity which at any time on or before the Closing Date was required to be aggregated with the Companies or CSC under Code Section 414(o). (g) Schedule 2.13(g) contains a true and complete list of names and current hourly wage, monthly salary or other compensation of all directors, officers, management employees, consultants, independent contractors or managers of the Business, with a summary of existing bonuses, additional compensation and other benefits (whether current or deferred), if any, paid or payable to each such person for services rendered in the fiscal year ended December 31, 2002. Schedule 2.13(g) contains a true and complete listing and summary description of all employment, compensation, non competition, confidentiality, consulting and independent contractor agreements and any other similar agreements between either of the Companies, CSC and their respective directors, officers, employees, independent contractors and consultants. (h) Neither of the Companies nor CSC are parties to any contract with any labor organization, nor have they agreed to, been required to or been asked to recognize or negotiate any union or other collective bargaining unit, nor has any union or other collective bargaining unit been certified as representing any of their respective employees. Neither the Companies nor CSC has knowledge of any organization currently being made, pursued or threatened by or on behalf of any labor union with respect to their respective employees. Neither of the Companies nor CSC has, within the last three years, experienced any strike, work stoppage, slow down, lockout, grievance proceeding, claim of unfair labor practices or other significant labor difficulty of any nature, nor are any claims pending or, to the best knowledge of the Companies, threatened between either of the Companies or CSC and any of their respective employees. (i) Neither of the Companies nor CSC has received notification as of the date of this Agreement that any of its current significant employees (or one or more employees who, when taken together, would be significant to CSC or the Companies) presently plan to terminate or otherwise resign from employment, whether by reason of the transactions contemplated hereby or otherwise. The employment of all persons presently employed or retained in the Business is terminable at will, and the Buyer will not be, pursuant to any current contract, arrangement or understanding (including collective bargaining agreements), applicable law, or otherwise, obligated to pay any severance pay or other benefit by reason of the voluntary or involuntary termination of employment of any present or former employee (including managers), consultant, independent contractor or agent of either of the Companies or CSC, prior to, on or after the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fairpoint Communications Inc)
Employee Benefit Plans; Labor and Employment Matters. (a) Set forth in Schedule 2.13 2.11 is a true, correct and complete list of each of the following employee benefit plans plans, labor and employee matters maintained, sponsored or contributed to by the Companies or CSC Sellers or any ERISA Affiliate at any time since January 1, 19972000, or with respect to which the Companies or CSC Sellers or any ERISA Affiliate could reasonably have any liabilities, or which provides or will provide benefits to present or former members, managers, partners, employees, officers, officers or directors or independent contractors of the Companies or CSC Sellers or any ERISA Affiliate, or their dependents, survivors or beneficiaries (the "“Company Plans"”): (i) each "“employee pension benefit plan" ” (as such term is defined in Section 3(2) of ERISA) ("“Pension Plan"”), (ii) each "“employee welfare benefit plan" ” (as such term is defined in Section 3(1) of ERISA), and (iii) each employee benefit plan, program or arrangement that is not subject to ERISA, including without limitation any retirement, pension, savings, profit sharing, money purchase pension, defined benefit, deferred compensation, severance, retention, golden parachute, stock ownership, stock purchase, stock option, phantom stock, equity, performance, bonus, incentive, vacation or holiday pay, educational assistance or tuition remission or reimbursement, cafeteria, dependent care, transportation, hospitalization or other medical, disability, death benefit plan (whether provided through insurance, on a funded or unfunded basis, or otherwise), or other welfare, benefit or fringe benefit plan, policy, trust, understanding or arrangement of any kind, whether written or oral. Neither None of the Companies, nor CSC, Sellers nor any ERISA Affiliate currently sponsors, maintains or is required to contribute to or make any payments in respect of, or has at any time sponsored, maintained or been required to contribute to or make any payments in respect of, (i) any Pension Plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code or (ii) any "“multiemployer plan" ” (as such term is defined in Section 3(37) of ERISA) ("“Multiemployer Plan"”). With respect to each Company Plan, the Companies or CSC Sellers have provided to Buyer a true, correct and complete copy of each of the following that is applicable to such Company Plan: the current plan document with all amendments thereto; any related trust or custodial agreements, insurance or annuity contracts currently in effect; the current summary plan description and any subsequent summary of material modifications; the Companies and CSC's Sellers’ current employee handbook; handbooks, personnel policies and procedures, individual employment contracts, independent contractor agreements and collective bargaining agreements, the most recent favorable IRS determination or opinion letter received; Form 5500s for the plan year ended December 31, 2001; notices of all reportable events filed (or descriptions of reportable events which have occurred, but have not been reported); any application for 2004 and grant or denial of funding waiver under Code Section 412; any Form 5330s filed with the Internal Revenue Service; SEC registration statements and SEC required disclosure to participants and Form 11-Ks; and a schedule of contributions for the past three years to any Multiemployer Plan.
(b) With respect to the Company Plans, except as set forth in Schedule 2.13 and except as would not individually or in the aggregate have a Company Material Adverse Effect2.11: (i) each Company Plan intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the "“Code"”) has received a favorable determination letter or prototype approval letter from the Internal Revenue Service (the "“IRS"”) that it is so qualified and since the date of such letter there are no circumstances that are reasonably likely to affect the qualified status of such Company Plan, (ii) each Company Plan has been operated in all material respects in accordance with its terms and the requirements of any applicable laws, regulations or administrative rulings, (iii) none of the Companies, CSC or Sellers nor any ERISA Affiliate has incurred or has any reason to believe that it will incur any direct or indirect liability under, arising out of or by operation of Title IV of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”), and no fact or event exists that is reasonably likely to give rise to any such liability, (iv) there is no pending or, to the knowledge of the Companies or CSCSellers, threatened claim, suit or grievance in respect of any of the Company Plans or, to the knowledge of the Companies or CSCSellers, any basis for any such claim, suit or grievance, other than claims for benefits in the ordinary course of business, and (v) all required contributions, reserves or premium payments for the Company Plans have been made.
(c) None of the Companies, CSC orSellers, to the knowledge of CSC or the CompaniesSellers, any other "“disqualified person" ” (within the meaning of Section 4975 of the Code) or "“party in interest" ” (within the meaning of Section 3(14) of ERISA) has taken any action with respect to any Company Plan that could subject any such plan (or its related trust), the Companies, CSC Sellers or any member, manager, partner, officer, director or employee of any of the foregoing to a material penalty or tax under Section 502(i) or Section 502(l) of ERISA or Section 4975 of the Code, provided that as to Multiemployer Plans, the representation and warranty in this Section 2.13(c) is made only to the knowledge of CSC or the Companies.
(d) Except as set forth in Schedule 2.132.11, none of the Companies or CSC Sellers maintains or contributes to any employee welfare benefit plan which provides benefits to employees after termination of employment other than as required by Part 6 of Title I of ERISA. Any employee welfare benefit plan set forth in Schedule 2.13 2.11 as described in the previous sentence can be amended or terminated at any time in the future.
(e) Except as set forth in Schedule 2.13 and except as would not individually or in the aggregate be reasonably likely to have a Company Material Adverse Effect2.11, (i) the Companies and CSC Sellers have complied in all material respects with all applicable laws, rules and regulations which relate to wages, hours, discrimination in employment and collective bargaining and are not liable for any arrears of wages or any taxes or penalties for failure to comply with any of the foregoing and (ii) there is no pending or, to the knowledge of CSC or the CompaniesSellers, threatened claim, suit, arbitration, grievance or investigation regarding employment matters against the Companies or CSCSellers. Except as set forth in Schedule 2.132.11, (x) there is no unsatisfied award, judgment or other final resolution of a dispute regarding employment matters against the Companies or CSC Sellers that requires continuing compliance therewith or that individually or in the aggregate constitutes a material liability and (y) none of the Companies or CSC Sellers is a party to any collective bargaining or other labor union contracts. There is no pending or, to the knowledge of CSC or the CompaniesSellers, threatened labor dispute, strike or work stoppage against the Companies or CSC Sellers which would interfere with the respective business activities of the Companies or CSC, except where such dispute, strike or work stoppage would not have a Company Material Adverse Effect Sellers and, to the knowledge of CSC or the CompaniesSellers, there are no pending or threatened union organizing or election activities involving any non-union employees of the Companies or CSCSellers.
(f) As used herein, "“ERISA Affiliate" ” shall mean (i) any corporation which at any time on or before the Closing Date is or was a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) with the Companies or CSCSellers, (ii) any partnership, trade or business (whether or not incorporated) which at any time on or before the Closing Date is or was under common control (within the meaning of Section 414(c) of the Code) with the Companies or CSCSellers, (iii) any entity which at any time on or before the Closing Date is or was a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) with the Companies, CSC Sellers or any corporation described in clause (i) of this paragraph or any partnership, trade or business described in clause (ii) of this paragraph, and (iv) any entity which at any time on or before the Closing Date was required to be aggregated with the Companies or CSC Sellers under Code Section 414(o).
(g) Schedule 2.13(g) 2.11 contains a true and complete list of names and current hourly wage, monthly salary or other compensation of all directors, officers, management managers, employees, consultants, independent contractors or managers of the Business, with a summary of existing bonuses, additional compensation and other benefits (whether current or deferred), if any, paid or payable to each such person for services rendered in the fiscal year ended December 31, 20022004. Schedule 2.13(g) 2.11 contains a true and complete listing and summary description of all employment, compensation, non competition, confidentiality, consulting and independent contractor agreements and any other similar agreements between either of the Companies, CSC Seller and their respective members, managers, partners, directors, officers, employees, independent contractors and consultants.
(h) Neither Except as listed on Schedule 2.11, none of the Companies nor CSC are parties Sellers is a party to any contract with any labor organization, nor have they agreed to, been required to or been asked to recognize or negotiate any union or other collective bargaining unit, nor has any union or other collective bargaining unit been certified as representing any of their respective employees. Neither None of the Companies nor CSC Sellers has knowledge of any organization currently being made, pursued or threatened by or on behalf of any labor union with respect to their respective employees. Neither of Except as listed on Schedule 2.11, the Companies nor CSC hasBusiness has not, within the last three years, experienced any strike, work stoppage, slow down, lockout, grievance proceeding, claim of unfair labor practices or other significant labor difficulty of any nature, nor are any claims pending or, to the best knowledge of the CompaniesSellers, threatened between either any of the Companies or CSC Sellers and any of their respective employees.
(i) Neither None of the Companies nor CSC Sellers has received notification as of the date of this Agreement that any of its current significant employees (or one or more employees who, when taken together, would be significant to CSC or the CompaniesSellers) presently plan to terminate or otherwise resign from employment, whether by reason of the transactions contemplated hereby or otherwise. The Except as listed on Schedule 2.11, the employment of all persons nonunion employees presently employed or retained in the Business is terminable at will, and the Buyer will not be, pursuant to any current contract, arrangement or understanding (including collective bargaining agreements), applicable law, or otherwise, obligated to pay any severance pay or other benefit by reason of the voluntary or involuntary termination of employment of any present or former employee (including managers), consultant, independent contractor or agent of either any of the Companies or CSC, Sellers prior to, on or after the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fairpoint Communications Inc)
Employee Benefit Plans; Labor and Employment Matters. (a) Set forth in Schedule 2.13 2.11 is a true, correct and complete list of each of the following employee benefit plans maintained, sponsored or contributed to maintained by the Companies or CSC Seller or any ERISA Affiliate at any time since January 1, 19972001, or with respect to which the Companies or CSC Seller or any ERISA Affiliate could reasonably have is or will be required to make any liabilitiespayment, or which provides or will provide benefits to present or former employees, officers, directors or independent contractors prior employees of the Companies or CSC Seller or any ERISA Affiliate, or their dependents, survivors or beneficiaries Affiliate due to such employment (the "“Company Plans"”): (i) each "“employee pension benefit plan" ” (as such term is defined in Section 3(2) of ERISA) ("“Pension Plan"”), (ii) each "“employee welfare benefit plan" ” (as such term is defined in Section 3(1) of ERISA), and (iii) each employment agreement or employee benefit or incentive compensation plan, program or arrangement that is not subject to ERISA, including without limitation any retirement, pension, savings, profit sharing, money purchase pension, defined benefit, deferred compensation, severance, stock ownership, retention, golden parachute, stock ownershipchange in control, stock purchase, stock option, phantom stock, equity, performance, bonus, incentive, vacation or holiday pay, educational assistance or tuition remission or reimbursement, cafeteria, dependent care, transportation, hospitalization or other medical, disability, death benefit plan (whether provided through life or other insurance, on a funded or unfunded basis, or otherwise), or other welfare, benefit or fringe benefit plan, policy, trust, understanding or arrangement of any kind, whether written or oral. Neither of the Companies, nor CSC, Seller nor any ERISA Affiliate currently sponsors, maintains or is required to contribute to or make any payments in respect of, or has at any time sponsored, maintained or been required to contribute to or make any payments in respect of, (i) any Pension Plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code or (ii) any "“multiemployer plan" ” (as such term is defined in Section 3(37) of ERISA) ("“Multiemployer Plan"”). With respect to each Company Plan, the Companies or CSC have provided to Buyer a true, correct and complete copy of each of the following that is applicable to such Company Plan: the current plan document with all amendments thereto; any related trust or custodial agreements, insurance or annuity contracts currently in effect; the current summary plan description and any subsequent summary of material modifications; the Companies and CSC's current employee handbook; the most recent favorable IRS determination or opinion letter received; Form 5500s for the plan year ended December 31, 2001; notices of all reportable events filed (or descriptions of reportable events which have occurred, but have not been reported); any application for and grant or denial of funding waiver under Code Section 412; any Form 5330s filed with the Internal Revenue Service; SEC registration statements and SEC required disclosure to participants and Form 11-Ks; and a schedule of contributions for the past three years to any Multiemployer Plan.
(b) With respect to the Company Plans, except as set forth in Schedule 2.13 and except as would not individually or in the aggregate have a Company Material Adverse Effect: (i) each Company Plan intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986Code, as amended (the "Code") has received a favorable determination letter from the Internal Revenue Service (the "IRS") that it is so qualified and nothing has occurred since the date of such letter there are no circumstances that are is reasonably likely to affect the qualified status of such Company Plan, (ii) each Company Plan has been operated in all material respects in accordance with its terms and the requirements of any applicable laws, regulations or administrative rulingslaw, (iii) none of the Companies, CSC or neither Seller nor any ERISA Affiliate has incurred or has any reason expects to believe that it will incur any direct or indirect or actual or secondary liability under, arising out of or by operation of Title IV of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”), and no fact or event exists that is reasonably likely to give rise to any such liability, (iv) there is no pending or, to the knowledge of the Companies or CSCSeller’s Knowledge, threatened claim, suit or grievance in respect of any of the Company Plans or, to the knowledge of the Companies or CSC, any basis for any such claim, suit or grievance, other than claims for benefits in the ordinary course of business, and (v) all required contributions, reserves or premium payments for the Company Plans have been made.
(c) None of the Companies, CSC orNeither Seller nor, to the knowledge of CSC or the CompaniesSeller’s Knowledge, any other "“disqualified person" ” (within the meaning of Section 4975 of the Code) or "“party in interest" ” (within the meaning of Section 3(14) of ERISA) has taken any action with respect to any Company Plan that could subject any such plan (or its related trust), the Companies, CSC Seller or any officer, director or employee of any of the foregoing Seller to a material penalty or tax under Section 502(i) or Section 502(l502(1) of ERISA or Section 4975 of the Code, provided that as to Multiemployer Plans, the representation and warranty in this Section 2.13(c) is made only to the knowledge of CSC or the Companies.
(d) Except as set forth in Schedule 2.132.11, none of the Companies Seller does not maintain or CSC maintains or contributes contribute to any employee welfare benefit plan which provides benefits to employees after termination of employment other than as required by Part 6 of Title I of ERISA. Any employee welfare benefit plan set forth in Schedule 2.13 2.11 as described in the previous sentence can be amended or terminated at any time in the futurefuture without liability other than for benefits incurred in the ordinary course of business.
(e) Except as set forth in Schedule 2.13 and except as would not individually or in the aggregate be reasonably likely to have a Company Material Adverse Effect2.11, (i) the Companies and CSC have Seller has complied in all material respects with all applicable laws, rules and regulations which relate to employment matters, including, without limitation, laws, rules and regulations relating to wages, hours, discrimination in employment employment, immigration and collective bargaining bargaining, and are is not liable for any arrears of wages or any taxes taxes, fines or penalties for failure to comply with any of the foregoing and (ii) there is no pending or, to the knowledge of CSC or the CompaniesSeller’s Knowledge, threatened claim, suit, arbitration, grievance or investigation regarding employment matters against the Companies or CSCSeller. Except as set forth in Schedule 2.132.11, (x) there is no unsatisfied award, judgment or other final resolution of a dispute regarding employment matters against the Companies or CSC Seller that requires continuing compliance therewith or that individually or in the aggregate constitutes a material liability and (y) none of the Companies or CSC Seller is not a party to any collective bargaining or other labor union contracts. There is no pending or, to the knowledge of CSC or the CompaniesSeller’s Knowledge, threatened labor dispute, strike or work stoppage against the Companies or CSC Seller which would interfere with the respective business activities of the Companies or CSCSeller, except where such dispute, strike or work stoppage would not have a Company Material Adverse Effect and, to the knowledge of CSC or the CompaniesSeller’s Knowledge, there are no pending or threatened union organizing or election activities involving any non-union employees of Seller. Without in any way limiting the Companies foregoing, and except as disclosed in Schedule 2.9 or CSCSchedule 2.11, Seller is not, nor has it at any time within the last five (5) years been, nor has it received any notice that it is or has at any time within the last five (5) years been, in violation of or in default under, in any material respect, any law, statute, rule, regulation, ordinance or other pronouncement having the effect of law of the United States or any domestic or state, county, city or other political subdivision or of any Governmental Entity applicable to occupational safety and health regarding the Business or the Purchased Assets and during such period has complied with all such laws, statutes, regulations, ordinances or other pronouncements applicable to occupational safety and health.
(f) As used herein, "“ERISA Affiliate" ” shall mean (i) any corporation which at any time on or before the Closing Date is or was a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) with the Companies or CSCas Seller, (ii) any partnership, trade or business (whether or not incorporated) which at any time on or before the Closing Date is or was under common control (within the meaning of Section 414(c) of the Code) with the Companies or CSCSeller, and (iii) any entity which at any time on or before the Closing Date is or was a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) with the Companiesas Seller, CSC or any corporation described in clause (i) of this paragraph or any partnership, trade or business described in clause (ii) of this paragraph, and (iv) any entity which at any time on or before the Closing Date was required to be aggregated with the Companies or CSC under Code Section 414(o).
(g) Schedule 2.13(g) contains a true and complete list of names and current hourly wage, monthly salary or other compensation of all directors, officers, management employees, consultants, independent contractors or managers of the Business, with a summary of existing bonuses, additional compensation and other benefits (whether current or deferred), if any, paid or payable to each such person for services rendered in the fiscal year ended December 31, 2002. Schedule 2.13(g) contains a true and complete listing and summary description of all employment, compensation, non competition, confidentiality, consulting and independent contractor agreements and any other similar agreements between either of the Companies, CSC and their respective directors, officers, employees, independent contractors and consultants.
(h) Neither of the Companies nor CSC are parties to any contract with any labor organization, nor have they agreed to, been required to or been asked to recognize or negotiate any union or other collective bargaining unit, nor has any union or other collective bargaining unit been certified as representing any of their respective employees. Neither the Companies nor CSC has knowledge of any organization currently being made, pursued or threatened by or on behalf of any labor union with respect to their respective employees. Neither of the Companies nor CSC has, within the last three years, experienced any strike, work stoppage, slow down, lockout, grievance proceeding, claim of unfair labor practices or other significant labor difficulty of any nature, nor are any claims pending or, to the best knowledge of the Companies, threatened between either of the Companies or CSC and any of their respective employees.
(i) Neither of the Companies nor CSC has received notification as of the date of this Agreement that any of its current significant employees (or one or more employees who, when taken together, would be significant to CSC or the Companies) presently plan to terminate or otherwise resign from employment, whether by reason of the transactions contemplated hereby or otherwise. The employment of all persons presently employed or retained in the Business is terminable at will, and the Buyer will not be, pursuant to any current contract, arrangement or understanding (including collective bargaining agreements), applicable law, or otherwise, obligated to pay any severance pay or other benefit by reason of the voluntary or involuntary termination of employment of any present or former employee (including managers), consultant, independent contractor or agent of either of the Companies or CSC, prior to, on or after the Closing.
Appears in 1 contract
Employee Benefit Plans; Labor and Employment Matters. (a) Set forth in Schedule 2.13 2.11 is a true, correct and complete list of each of the following employee benefit plans maintained, sponsored or contributed to maintained by the Companies or CSC Seller or any ERISA Affiliate at any time since January 1, 19972000, or with respect to which the Companies or CSC Seller or any ERISA Affiliate could reasonably have is or will be required to make any liabilitiespayment, or which provides or will provide benefits to present or former employees, officers, directors or independent contractors prior employees of the Companies or CSC Seller or any ERISA Affiliate, or their dependents, survivors or beneficiaries Affiliate due to such employment (the "“Company Plans"”): (i) each "“employee pension benefit plan" ” (as such term is defined in Section 3(2) of ERISA) ("“Pension Plan"”), (ii) each "“employee welfare benefit plan" ” (as such term is defined in Section 3(1) of ERISA), and (iii) each employment agreement or employee benefit or incentive compensation plan, program or arrangement that is not subject to ERISA, including without limitation any retirement, pension, savings, profit sharing, money purchase pension, defined benefit, deferred compensation, severance, stock ownership, retention, golden parachutechange in control (other than the arrangements referred to in Section 4.2 hereof for the benefit of Messrs. XxXxxxxx, stock ownershipFaraday and Xxxxxxxx), stock purchase, stock option, phantom stock, equity, performance, bonus, incentive, vacation or holiday pay, educational assistance or tuition remission or reimbursement, cafeteria, dependent care, transportation, hospitalization or other medical, disability, death benefit plan (whether provided through life or other insurance, on a funded or unfunded basis, or otherwise), or other welfare, benefit or fringe benefit plan, policy, trust, understanding or arrangement of any kind, whether written or oral. Neither of the Companies, nor CSC, Seller nor any ERISA Affiliate currently sponsors, maintains or is required to contribute to or make any payments in respect of, or has at any time sponsored, maintained or been required to contribute to or make any payments in respect of, (i) any Pension Plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code or (ii) any "“multiemployer plan" ” (as such term is defined in Section 3(37) of ERISA) ("“Multiemployer Plan"”). With respect to each Company Plan, the Companies or CSC have provided to Buyer a true, correct and complete copy of each of the following that is applicable to such Company Plan: the current plan document with all amendments thereto; any related trust or custodial agreements, insurance or annuity contracts currently in effect; the current summary plan description and any subsequent summary of material modifications; the Companies and CSC's current employee handbook; the most recent favorable IRS determination or opinion letter received; Form 5500s for the plan year ended December 31, 2001; notices of all reportable events filed (or descriptions of reportable events which have occurred, but have not been reported); any application for and grant or denial of funding waiver under Code Section 412; any Form 5330s filed with the Internal Revenue Service; SEC registration statements and SEC required disclosure to participants and Form 11-Ks; and a schedule of contributions for the past three years to any Multiemployer Plan.
(b) With respect to the Company Plans, except as set forth in Schedule 2.13 and except as would not individually or in the aggregate have a Company Seller Material Adverse Effect: (i) each Company Plan intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the "“Code") ”), has received a favorable determination letter from the Internal Revenue Service (the "“IRS"”) that it is so qualified and nothing has occurred since the date of such letter there are no circumstances that are is reasonably likely to affect the qualified status of such Company Plan, (ii) each Company Plan has been operated in all material respects in accordance with its terms and the requirements of any applicable laws, regulations or administrative rulingslaw, (iii) none of the Companies, CSC or neither Seller nor any ERISA Affiliate has incurred or has any reason expects to believe that it will incur any direct or indirect or actual or secondary liability under, arising out of or by operation of Title IV of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”), and no fact or event exists that is reasonably likely to give rise to any such liability, (iv) there is no pending or, to the knowledge of the Companies or CSCSeller, threatened claim, suit or grievance in respect of any of the Company Plans or, to the knowledge of the Companies or CSC, any basis for any such claim, suit or grievance, other than claims for benefits in the ordinary course of business, and (v) all required contributions, reserves or premium payments for the Company Plans have been made.
(c) None of the Companies, CSC orNeither Seller nor, to the knowledge of CSC or the CompaniesSeller, any other "“disqualified person" ” (within the meaning of Section 4975 of the Code) or "“party in interest" ” (within the meaning of Section 3(14) of ERISA) has taken any action with respect to any Company Plan that could subject any such plan (or its related trust), the Companies, CSC Seller or any officer, director or employee of any of the foregoing Seller to a material penalty or tax under Section 502(i) or Section 502(l) of ERISA or Section 4975 of the Code, provided that as to Multiemployer Plans, the representation and warranty in this Section 2.13(c) is made only to the knowledge of CSC or the Companies.
(d) Except as set forth in Schedule 2.132.11, none of the Companies Seller does not maintain or CSC maintains or contributes contribute to any employee welfare benefit plan which provides benefits to employees after termination of employment other than as required by Part 6 of Title I of ERISA. Any employee welfare benefit plan set forth in Schedule 2.13 2.11 as described in the previous sentence can be amended or terminated at any time in the futurefuture without liability other than for benefits incurred in the ordinary course of business.
(e) Except as set forth in Schedule 2.13 2.11 and except as would not individually or in the aggregate be reasonably likely to have a Company Seller Material Adverse Effect, (i) the Companies and CSC have Seller has complied in all material respects with all applicable laws, rules and regulations which relate to employment matters, including, without limitation, laws, rules and regulations relating to wages, hours, discrimination in employment employment, immigration and collective bargaining bargaining, and are is not liable for any arrears of wages or any taxes taxes, fines or penalties for failure to comply with any of the foregoing and (ii) there is no pending or, to the knowledge of CSC or the CompaniesSeller, threatened claim, suit, arbitration, grievance or investigation regarding employment matters against the Companies or CSCSeller. Except as set forth in Schedule 2.132.11, (x) there is no unsatisfied award, judgment or other final resolution of a dispute regarding employment matters against the Companies or CSC Seller that requires continuing compliance therewith or that individually or in the aggregate constitutes a material liability and (y) none of the Companies or CSC Seller is not a party to any collective bargaining or other labor union contracts. There is no pending or, to the knowledge of CSC or the CompaniesSeller, threatened labor dispute, strike or work stoppage against the Companies or CSC Seller which would interfere with the respective business activities of the Companies or CSCSeller, except where such dispute, strike or work stoppage would not have a Company Seller Material Adverse Effect and, to the knowledge of CSC or the CompaniesSeller, there are no pending or threatened union organizing or election activities involving any non-union employees of the Companies Seller. Without in any way limiting the foregoing, and except as disclosed in Schedule 2.9 or CSCSchedule 2.11, Seller is not, nor has it at any time within the last five (5) years been, nor has it received any notice that it is or has at any time within the last five (5) years been, in violation of or in default under, in any material respect, any law, statute, rule, regulation, ordinance or other pronouncement having the effect of law of the United States or any domestic or state, county, city or other political subdivision or of any Governmental Entity applicable to occupational safety and health regarding the Business or the Purchased Assets and during such period has complied with all such laws, statutes, regulations, ordinances or other pronouncements applicable to occupational safety and health.
(f) As used herein, "“ERISA Affiliate" ” shall mean (i) any corporation which at any time on or before the Closing Date is or was a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) with the Companies or CSCas Seller, (ii) any partnership, trade or business (whether or not incorporated) which at any time on or before the Closing Date is or was under common control (within the meaning of Section 414(c) of the Code) with the Companies or CSCSeller, and (iii) any entity which at any time on or before the Closing Date is or was a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) with the Companiesas Seller, CSC or any corporation described in clause (i) of this paragraph or any partnership, trade or business described in clause (ii) of this paragraph, and (iv) any entity which at any time on or before the Closing Date was required to be aggregated with the Companies or CSC under Code Section 414(o).
(g) Schedule 2.13(g) contains a true and complete list of names and current hourly wage, monthly salary or other compensation of all directors, officers, management employees, consultants, independent contractors or managers of the Business, with a summary of existing bonuses, additional compensation and other benefits (whether current or deferred), if any, paid or payable to each such person for services rendered in the fiscal year ended December 31, 2002. Schedule 2.13(g) contains a true and complete listing and summary description of all employment, compensation, non competition, confidentiality, consulting and independent contractor agreements and any other similar agreements between either of the Companies, CSC and their respective directors, officers, employees, independent contractors and consultants.
(h) Neither of the Companies nor CSC are parties to any contract with any labor organization, nor have they agreed to, been required to or been asked to recognize or negotiate any union or other collective bargaining unit, nor has any union or other collective bargaining unit been certified as representing any of their respective employees. Neither the Companies nor CSC has knowledge of any organization currently being made, pursued or threatened by or on behalf of any labor union with respect to their respective employees. Neither of the Companies nor CSC has, within the last three years, experienced any strike, work stoppage, slow down, lockout, grievance proceeding, claim of unfair labor practices or other significant labor difficulty of any nature, nor are any claims pending or, to the best knowledge of the Companies, threatened between either of the Companies or CSC and any of their respective employees.
(i) Neither of the Companies nor CSC has received notification as of the date of this Agreement that any of its current significant employees (or one or more employees who, when taken together, would be significant to CSC or the Companies) presently plan to terminate or otherwise resign from employment, whether by reason of the transactions contemplated hereby or otherwise. The employment of all persons presently employed or retained in the Business is terminable at will, and the Buyer will not be, pursuant to any current contract, arrangement or understanding (including collective bargaining agreements), applicable law, or otherwise, obligated to pay any severance pay or other benefit by reason of the voluntary or involuntary termination of employment of any present or former employee (including managers), consultant, independent contractor or agent of either of the Companies or CSC, prior to, on or after the Closing.
Appears in 1 contract
Employee Benefit Plans; Labor and Employment Matters. (a) Set forth in Schedule 2.13 is a true, correct and complete list of each of the following employee benefit plans maintained, sponsored or contributed to by the Companies Sellers or CSC or any ERISA Affiliate at any time since January 1, 1997, or with respect to which the Companies Sellers or CSC or any ERISA Affiliate could reasonably have any liabilities, or which provides or will provide benefits to present or former employees, officers, directors or independent contractors of the Companies Sellers or CSC or any ERISA Affiliate, or their dependents, survivors or beneficiaries (the "Company Plans"): (i) each "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA) ("Pension Plan"), (ii) each "employee welfare benefit plan" (as such term is defined in Section 3(1) of ERISA), and (iii) each employee benefit plan, program or arrangement that is not subject to ERISA, including without limitation any retirement, pension, savings, profit sharing, money purchase pension, defined benefit, deferred compensation, severance, retention, golden parachute, stock ownership, stock purchase, stock option, phantom stock, equity, performance, bonus, incentive, vacation or holiday pay, educational assistance or tuition remission or reimbursement, cafeteria, dependent care, transportation, hospitalization or other medical, disability, death benefit plan (whether provided through insurance, on a funded or unfunded basis, or otherwise), or other welfare, benefit or fringe benefit plan, policy, trust, understanding or arrangement of any kind, whether written or oral. Neither of the CompaniesSeller, nor CSC, nor any ERISA Affiliate currently sponsors, maintains or is required to contribute to or make any payments in respect of, or has at any time sponsored, maintained or been required to contribute to or make any payments in respect of, (i) any Pension Plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code or (ii) any "multiemployer plan" (as such term is defined in Section 3(37) of ERISA) ("Multiemployer Plan"). With respect to each Company Plan, the Companies Sellers or CSC have provided to Buyer a true, correct and complete copy of each of the following that is applicable to such Company Plan: the current plan document with all amendments thereto; any related trust or custodial agreements, insurance or annuity contracts currently in effect; the current summary plan description and any subsequent summary of material modifications; the Companies Sellers and CSC's current employee handbook; the most recent favorable IRS determination or opinion letter received; Form 5500s for the plan year ended December 31, 2001; notices of all reportable events filed (or descriptions of reportable events which have occurred, but have not been reported); any application for and grant or denial of funding waiver under Code Section 412; any Form 5330s filed with the Internal Revenue Service; SEC registration statements and SEC required disclosure to participants and Form 11-Ks; and a schedule of contributions for the past three years to any Multiemployer Plan.
(b) With respect to the Company Plans, except as set forth in Schedule 2.13 and except as would not individually or in the aggregate have a Company Seller Material Adverse Effect: (i) each Company Plan intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code") has received a favorable determination letter from the Internal Revenue Service (the "IRS") that it is so qualified and since the date of such letter there are no circumstances that are reasonably likely to affect the qualified status of such Company Plan, (ii) each Company Plan has been operated in all material respects in accordance with its terms and the requirements of any applicable laws, regulations or administrative rulings, (iii) none of the CompaniesSellers, CSC or any ERISA Affiliate has incurred or has any reason to believe that it will incur any direct or indirect liability under, arising out of or by operation of Title IV of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and no fact or event exists that is reasonably likely to give rise to any such liability, (iv) there is no pending or, to the knowledge of the Companies Sellers or CSC, threatened claim, suit or grievance in respect of any of the Company Plans or, to the knowledge of the Companies Sellers or CSC, any basis for any such claim, suit or grievance, other than claims for benefits in the ordinary course of business, and (v) all required contributions, reserves or premium payments for the Company Plans have been made.
(c) None of the CompaniesSellers, CSC or, to the knowledge of CSC or the CompaniesSellers, any other "disqualified person" (within the meaning of Section 4975 of the Code) or "party in interest" (within the meaning of Section 3(14) of ERISA) has taken any action with respect to any Company Plan that could subject any such plan (or its related trust), the CompaniesSellers, CSC or any officer, director or employee of any of the foregoing to a material penalty or tax under Section 502(i) or Section 502(l) of ERISA or Section 4975 of the Code, provided that as to Multiemployer Plans, the representation and warranty in this Section 2.13(c) is made only to the knowledge of CSC or the CompaniesSellers.
(d) Except as set forth in Schedule 2.13, none of the Companies Sellers or CSC maintains or contributes to any employee welfare benefit plan which provides benefits to employees after termination of employment other than as required by Part 6 of Title I of ERISA. Any employee welfare benefit plan set forth in Schedule 2.13 as described in the previous sentence can be amended or terminated at any time in the future.
(e) Except as set forth in Schedule 2.13 and except as would not individually or in the aggregate be reasonably likely to have a Company Seller Material Adverse Effect, (i) the Companies Sellers and CSC have complied in all material respects with all applicable laws, rules and regulations which relate to wages, hours, discrimination in employment and collective bargaining and are not liable for any arrears of wages or any taxes or penalties for failure to comply with any of the foregoing and (ii) there is no pending or, to the knowledge of CSC or the CompaniesSellers, threatened claim, suit, arbitration, grievance or investigation regarding employment matters against the Companies Sellers or CSC. Except as set forth in Schedule 2.13, (x) there is no unsatisfied award, judgment or other final resolution of a dispute regarding employment matters against the Companies Sellers or CSC that requires continuing compliance therewith or that individually or in the aggregate constitutes a material liability and (y) none of the Companies Sellers or CSC is a party to any collective bargaining or other labor union contracts. There is no pending or, to the knowledge of CSC or the CompaniesSellers, threatened labor dispute, strike or work stoppage against the Companies Sellers or CSC which would interfere with the respective business activities of the Companies Sellers or CSC, except where such dispute, strike or work stoppage would not have a Company Seller Material Adverse Effect and, to the knowledge of CSC or the CompaniesSellers, there are no pending or threatened union organizing or election activities involving any non-union employees of the Companies Sellers or CSC.
(f) As used herein, "ERISA Affiliate" shall mean (i) any corporation which at any time on or before the Closing Date is or was a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) with the Companies Sellers or CSC, (ii) any partnership, trade or business (whether or not incorporated) which at any time on or before the Closing Date is or was under common control (within the meaning of Section 414(c) of the Code) with the Companies Sellers or CSC, (iii) any entity which at any time on or before the Closing Date is or was a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) with the CompaniesSellers, CSC or any corporation described in clause (i) of this paragraph or any partnership, trade or business described in clause (ii) of this paragraph, and (iv) any entity which at any time on or before the Closing Date was required to be aggregated with the Companies Sellers or CSC under Code Section 414(o).
(g) Schedule 2.13(g) contains a true and complete list of names and current hourly wage, monthly salary or other compensation of all directors, officers, management employees, consultants, independent contractors or managers of the Business, with a summary of existing bonuses, additional compensation and other benefits (whether current or deferred), if any, paid or payable to each such person for services rendered in the fiscal year ended December 31, 2002. Schedule 2.13(g) contains a true and complete listing and summary description of all employment, compensation, non competition, confidentiality, consulting and independent contractor agreements and any other similar agreements between either of the CompaniesSeller, CSC and their respective directors, officers, employees, independent contractors and consultants.
(h) Neither of the Companies Seller nor CSC are parties to any contract with any labor organization, nor have they agreed to, been required to or been asked to recognize or negotiate any union or other collective bargaining unit, nor has any union or other collective bargaining unit been certified as representing any of their respective employees. Neither the Companies Sellers nor CSC has knowledge of any organization currently being made, pursued or threatened by or on behalf of any labor union with respect to their respective employees. Neither of the Companies Seller nor CSC has, within the last three years, experienced any strike, work stoppage, slow down, lockout, grievance proceeding, claim of unfair labor practices or other significant labor difficulty of any nature, nor are any claims pending or, to the best knowledge of the CompaniesSellers, threatened between either of the Companies Seller or CSC and any of their respective employees.
(i) Neither of the Companies Sellers nor CSC has received notification as of the date of this Agreement that any of its current significant employees (or one or more employees who, when taken together, would be significant to CSC or the CompaniesSellers) presently plan to terminate or otherwise resign from employment, whether by reason of the transactions contemplated hereby or otherwise. The employment of all persons presently employed or retained in the Business is terminable at will, and the Buyer will not be, pursuant to any current contract, arrangement or understanding (including collective bargaining agreements), applicable law, or otherwise, obligated to pay any severance pay or other benefit by reason of the voluntary or involuntary termination of employment of any present or former employee (including managers), consultant, independent contractor or agent of either of the Companies Seller or CSC, prior to, on or after the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fairpoint Communications Inc)
